Greenwashing is not a white lie

By Manon Verbeeren Senior Trademarks | Designs Attorney IP Hills | Ipsilon Group

Translation from French with DeepL

If your company has decided to go green and use terms such as “green”, “sustainable”, “recyclable”, “zero impact”, “organic” or “natural” in your brand, or to use a logo that refers to these concepts, we explain in this article the risks you need to be aware of when registering your brand, as well as when using it.

Greenwhat? Greenwash

Whether it’s the cause of genuine eco-anxiety for some, or of limited interest to others, ecology is gradually becoming part of people’s consumption habits. The consequence of these new habits is obvious: environmentally-friendly products and services are now more attractive to consumers, even if their costs are often higher.

It didn’t take long for companies to adapt and gear their product and service offerings, and related marketing strategies, towards “greener” solutions. While this development is to be welcomed, the fact remains that this sudden attraction to ecology is not always followed by corresponding action. Indeed, it’s very tempting for some companies to ride this wave of “greener” enterprise, without changing their business model accordingly. You’ll be familiar with this practice, known as “greenwashing”.

No green light for registration of misleading trademarks

When you file an application for registration in the EU or Benelux, the relevant offices (EUIPO or BOIP) examine it before proceeding with registration. If your application presents a ground for refusal known as “absolute” the office in question will reject your trademark application.

No absolute ground explicitly addresses the issue of greenwashing. The EUIPO and BOIP may, however, refuse your application if you attempt to register a trademark that is “liable to mislead the public, for example as to the nature, quality or geographical origin of the product or service”.

Your trademark may in fact be qualified as “misleading” if it contains an environmental claim that is incorrect in relation to the goods and services for which it is being applied for registration, and which presents a serious risk of misleading consumers. To this end, the presumed expectations of the average consumer must be taken into account.

By way of example, the EUIPO refused to register the following trademarks on the grounds that they were “misleading”:

• The figurative mark “” was refused registration by the EUIPO for plastic bags and packaging articles, as well as plastic cups. The EUIPO considered that the message conveyed by this trademark was likely to mislead consumers, since there was a serious risk that they would think that the articles were made of recycled paper (“paper 2 paper”) when in fact they were made of plastic (EUIPO, October 10, 2022, no. 018531080).

• The “BioCoffee” trademark was applied for the registration of electric coffee machines. The EUIPO ruled that it was misleading in that it conveyed the information that the coffee machines would enable consumers to prepare “organic” coffees, whereas the machines do not in fact have these characteristics (EUIPO, July 22, 2022, no. 1636640).

• The word mark “NETZERO COBALT” was applied for in relation to metals such as cobalt. According to the EUIPO, the relevant public was likely to understand that the trademark owner produced cobalt in a way that enabled it to achieve a balance between the carbon emissions produced and those removed from the atmosphere. Indeed, even if the expression “NET-ZERO” was not in the dictionary, it was clear from several press articles and other documents that its meaning would be understood as such by the relevant public (EUIPO, Board of Appeal, March 28, 2022, R 2067/2021-2).

• The “” figurative mark was applied for in respect of various products, such as biodegradable cutlery and crockery, razors, USB sticks and toothbrushes. For all products not explicitly indicated as biodegradable, the EUIPO considered that the trademark could not be registered as it was misleading. According to the EUIPO, these products could be made exclusively of plastic, and it is common knowledge that plastic particles often end up in the water that flows into the oceans. There is therefore a serious risk that consumers will perceive the trademark as a promotional statement informing them of the ecological characteristics of the products when this is not the case.

Finally, please also note that, even if you succeed in registering your trademark, you can still be deprived of your rights if, as a result of the use you have made of it for the goods or services for which it is registered, the trademark is liable to mislead the public, in particular as to the nature, quality or geographical origin of those goods or services.

No colouring outside the legal lines with green

Think you can get around the risks identified above by not registering your trademark? Be aware that similar rules exist even if you use a trademark without registering it in connection with the sale of your products or the provision of your services, and the trademark contains environmental claims.

In Belgium, the Code of Economic Law does not contain any specific rules on environmental claims, but it does provide a legal basis to ensure that companies do not present such claims in a way that is unfair to consumers. According to the practical guide provided by the FPS Economy, these provisions apply to “all types of statements, information, symbols, logos, illustrations and brand names, and their interaction with colors, on packaging, labeling, advertising and in all media”.

It is therefore also forbidden to use a logo or word mark that contains environmental claims likely to mislead the consumer. The authority responsible for verifying the truthfulness of these claims is the Directorate General for Economic Inspection of the Federal Public Service Economy. To this end, it is entitled to ask you to provide evidence in support of the environmental claims you make. Should you fail to provide such proof, the Economic Inspection will be entitled to ask you to cease use and/or impose a fine.

It should also be noted that any interested party is entitled to oppose the use of incorrect environmental claims made by a company by initiating legal proceedings before the competent courts. For example, the Amsterdam court recently found the Dutch airline KLM guilty of misleading advertising. Their “Fly responsibly” campaign was misleadingly and wrongfully implied that its services, namely flights, had a lower climate impact.

The future is green in Europe

The control of environmental claims is not exclusive to Belgium, since all EU member states have had to implement it under the Unfair Commercial Practices Directive and the Consumer Rights Directive.

The European legislator is also seeking to reinforce these controls through its proposed Directive on Ecological Claims. One of the aims of this future directive is to strengthen requirements for environmental claims, by imposing minimum criteria for substantiation and requiring independent verification of environmental labelling schemes.

The Council of the European Union published its position on June 17, and is now ready to negotiate with the European Parliament. It is therefore to be hoped that this directive will see the light of day very soon.

The author’s opinion

In recent years, the number of “green” brands and environmental claims used by European companies has grown steadily. While this enthusiasm is to be welcomed, according to a study by the European Commission, 40% of environmental claims are not supported by sufficient evidence. The EUIPO’s practices, and the proposed new Directive on environmental claims, are therefore very welcome, to enable European consumers to opt for brands that are genuinely concerned with preserving the environment.

Sources:
EUIPO, Division d’examen, 10 octobre 2022, n° 018531080, Paper2Paper Recyclable, UAB Miko ir Tado leidyklos spaustuvė / EUIPO.

EUIPO, Division d’examen, 22 juillet 2022, n° 1636640, BioCoffee, Arecelik Anonim Sirketi / EUIPO.

EUIPO, Chambre de recours (2^ème), 28 mars 2022, R 2067/2021-2, NETZERO COBALT, Canada Nickel Company Inc. / EUIPO.

EUIPO, Chambre de recours (5^ème),11 novembre 2019, R 1799/2019-5, Save the ocean, JSS Trade House OÜ / EUIPO.

SPF Economie, Guidelines – Allégations environnementales, disponibles sur www.economie.fgov.be.  Le Monde, “KLM perd un procès pour greenwashing aux Pays-Bas”, publié le 21 mars 2024 et disponible sur www.lemonde.fr.

Directive 2005/29/CE du Parlement européen et du Conseil du 11 mai 2005 relative aux pratiques commerciales déloyales des entreprises vis-à-vis des consommateurs dans le marché intérieur, J.O.U.E., 11 juin 2005, L 149/22.

Directive 2011/83/UE du Parlement européen et du Conseil du 25 octobre 2011 relative aux droits des consommateurs, J.O.U.E., 22 novembre 2011, L 304/64.

Proposition de Directive du Parlement européen et du Conseil relative à la justification et à la communication des allégations environnementales explicites, 2023/0085.

Communiqué de presse du 17 juin 2024 du Conseil  de l’Union européenne,“Green claims directive: Council ready to start talks with the European Parliament”, disponible sur www.consilium.europa.eu