Fuelling IP: Green Branding and Trade Mark Risk in the Energy Transition

What do the trade marks GREEN STEAM[1], ECO FLOW[2] and [3] have in common?  The answer is that they are all marks that have been refused by the EU Intellectual Property Office (EUIPO) within the past few years.

The EUIPO found that the marks were descriptive or non-distinctive of the goods concerned.  These objections are closely related, as marks that describe the characteristics of goods will also generally lack the distinctiveness required for trade mark protection.

When ‘Green’ Marks Fail

In the case of GREEN STEAM, the EUIPO decided that the consumer would perceive the sign as providing purely laudatory information – i.e. that the goods would be used for the generation of energy from pressurised steam in an environmentally friendly manner.

Similarly, the EUIPO deemed ECOFLOW to be non-distinctive of goods including heating apparatus, air heaters and solar water heaters among other things, since the consumer would understand the mark as having the following meaning: a continuous stream or discharge that does not harm the environment.

Finally, the blue and green logo was rejected on the basis of non-distinctiveness for several reasons, including the grounds that the colour green may be perceived as a reference or allusion to the environmentally-friendly characteristics of the goods.

It is fairly common for the EUIPO to refuse to register marks that it considers to be non-distinctive or descriptive of the goods in question.  Since one of the main functions of a trade mark is to act as a badge of origin to distinguish the goods and services of one undertaking from those of another, trade mark examiners all over the world routinely reject marks that do not meet this requirement.

However, the above refusals also reflect a trend by the EUIPO to adopt an increasingly stringent approach to ‘green trade marks’ and sustainable branding.  The UK is also adopting a similar stance.

Greenwashing Rules Beyond Trade Mark Law

In 2024, new rules in the EU came into force courtesy of the Directive on Empowering Consumers for the Green Transition (EU 2024/825).  Known as EmpCo for short, the aim of the directive is to protect consumers from misleading environmental claims and labels.  Essentially, the law is to prevent ‘greenwashing’, and includes the prohibition of vague environmental claims that cannot be supported by evidence.  EmpCo becomes binding in the EU and fully applicable in September this year (2026).

In the UK, the Competition and Markets Authority (CMA) published the Green Claims Code in 2021, which shares similar aims with EmpCo.  Businesses are encouraged to make sure that any branding, logos or descriptions that would lead a consumer to think a product or service was ‘green’ or ‘eco-friendly’ would be accurate and not misleading.

The Role of the UKIPO and EUIPO

The UK Intellectual Property Office (UKIPO) and EUIPO are not responsible for enforcing the Green Claims Code or EmpCo.  However, trade mark owners have always had a duty to ensure that their trade marks are not misleading.

While a trade mark must not describe the goods concerned, it must also not deceive the public.  The UK has traditionally applied a high threshold when assessing whether a mark is deceptive, and the examiner will not assume an intention to deceive.  Consequently, marks are more frequently refused because they are descriptive rather than deceptive.

Nevertheless, given the current approach of the UK and EU authorities more broadly, trade mark applicants should be mindful when choosing a new trade mark – especially where the mark is intended to showcase any eco‑friendly credentials.

The Energy Sector

In the energy sector in particular, companies can often be keen to demonstrate progress towards the energy transition.  Although this is laudable, marketing departments and brand teams must ensure that any trade marks do not overstate the ‘green’ nature or qualities of their goods or services.  Otherwise, there is a risk that the marks will be refused or, if already registered, vulnerable to challenge.

Practical Steps for Sustainable Branding

• Ensure that your mark is distinctive – prioritise originality over descriptive terms like ECO or GREEN

• If you use terms in your trade mark such as SUSTAINABLE or ECOLOGICAL, make sure these terms are not deceptive or misleading

• Consider adding colours and figurative elements to the mark to increase its distinctive character overall

[1] EU designation of IR No. 1775114 in the name of Graphite Energy (Assets) Pty Limited

[2] EUTM Application No. 018984049 in the name of EcoFlow Inc.

[3] EU designation of IR No. 1593116 in the name of OMV Aktiengesellschaft

This article was prepared by Senior Trade Mark Attorney Sarah De’Ath.