Trademarks under the EmpCo Directive: navigating risks in the era of greenwashing rules

One of the most striking elements of the EmpCo Directive is its potential to restrict the use of registered labels and logos that include environmental claims. Under the rules, any label suggesting environmental performance must be based on a recognized third-party certification scheme or have been established by a government agency.

This means a trademarked “green” logo or label – such as a leaf icon with the word “eco” or “planet-friendly” – will be prohibited from use unless it has obtained a third-party certification. This effectively results in a prohibition of self-developed “green” labels.

Crucially, registration at the EUIPO or national level does not shield such marks from enforcement action if their use violates the greenwashing provisions.

In practice, brand owners may find themselves holding a valid trademark that they can no longer use on packaging or in marketing.

The above also holds true for product names alluding to environmental friendliness, even if they are not embodied in a specific logo or label. Transparency requirements require that environmental claims or allusions must be accompanied by a specification on the same medium (e.g. on pack) and backed by evidence proving the alleged excellent environmental performance of a product. Claims such as “carbon neutral” are prohibited altogether if they are based on CO2 compensation schemes.

The Directive also affects trade names and company names that imply environmental friendliness, particularly if such implications are not backed by evidence or do not meet specific transparency and substantiation requirements. For example, names alluding to “green”, “eco” or “sustainable” may attract regulatory attention if used in ways that are deemed misleading under the new rules.

Even if the name is not directly used as a product-level claim, its mere presence in commercial communications could be enough to trigger liability if it creates a false or unsubstantiated impression about the environmental attributes of the company or its goods.

Importantly, the Directive empowers enforcement authorities to take action not just against specific product claims, but against broader brand-level representations. Trade names are not exempt.

The Directive's focus on substantiated environmental claims places certification marks in the spotlight. Certification marks – registered under Article 83 EUTMR or equivalent national provisions – already operate under stricter rules and are meant to indicate compliance with specific standards.

However, the EmpCo Directive could effectively override certification marks that do not meet the Directive's transparency or substantiation criteria. For instance, if a certification body's environmental standards are not robust or verifiable enough under the Directive, the use of that mark could be restricted – even if it is validly registered and used in line with the certification regulations.

Trademark owners and certifiers will need to reassess whether their certification schemes align with the EmpCo requirements, or risk enforcement action despite formal compliance with IP rules.

A further – and less discussed – consequence is the potential impact on trademark registrability and validity. If a mark is deemed to convey an environmental message that is misleading or unsubstantiated, it could face objection on absolute grounds under Article 7(1)(f) EUTMR (contrary to public policy or accepted principles of morality) or under Article 7(1)(g) (deceptive marks).

While these provisions are traditionally interpreted narrowly, the Directive may lead to a shift in examination practice, particularly if EUIPO or national offices begin factoring in greenwashing concerns at the application stage.

Moreover, existing marks could be vulnerable to cancellation if enforcement authorities or competitors argue that the trademark misleads the public about environmental characteristics, in violation of the EmpCo rules. This could introduce a new layer of legal risk for marks that, until now, were considered perfectly legal.