Environmental protection issues are gaining more attention each year, and environmental awareness is becoming a very catchy subject.
Terms like: Eco, Eco friendly, environmentally friendly or sustainable development have become a desirable buzzwords and are often placed on products and used in an advertising.
The said trend can be observed in the case of a so-called green trademarks. Companies are increasingly applying for registrations of marks containing verbal and graphic elements emphasizing respect for an environmental protection.
In order to evoke positive associations related to ecology, companies often use the green colour and graphic themes in forms of a leaf, a twig or a tree, as well as slogans and words emphasising environmental awareness.
However, obtaining exclusive rights to the trademarks containing such elements may be difficult.
It is due to the subject matter of descriptive trademarks which is a frequent obstacle to the trademark registrations.
In the case law, it is assumed that a descriptive trademark is a kind of designation which conveys information about the characteristics of specific goods and services clearly and unambiguously, so that it can be understood directly and not by an association.
Therefore, in order to avoid refusal to registration, marks containing only or mostly elements commonly used to emphasize the ecological aspects of products and services should not be submitted for protection.
As an example, the EU General Court ruled that the sign BECAUSE THERE IS NO PLANET B lacks distinctive character.
The court concluded that the relevant public would understand the expression in question as a referring to the concept of sustainable development and ecology in the broad sense. The commented mark was considered to be only an activist slogan, which promotes taking care of planet's ecosystem by protecting it, since there is no alternative planet on which we can live.
The ruling emphasized that thanks to the increasing campaigns, the public is increasingly aware of climate change, global warming and the need for more sustainable development. Accordingly, the promotional connotation of the trademark applied for, is readily apparent due to the fact that the public's interest in sustainable development in production and consumption has increased dramatically in recent years, thereby the issues of an urgent need for environmental protection and climate action are definitely having a stronger impact on everyday life. Thus, the mark will be seen as a mere advertising message.
It is also worth mentioning the subject matter of descriptive marks in the future aspect. The rulings indicate that a descriptive signs must remain free to other market participants, even if they are not currently recognized as descriptive ones, but it can be assumed that they may be perceived so in the future.
An example of this interpretation is the aquamation trademark case.
The EU General Court confirmed that the said mark is descriptive because it is intended to designate: funeral urns, funeral services and funeral services for pets.
The Court noted that the public will perceive the first part of the designation as "aqua," meaning water, while the second part of the designation "mation" will be understood as referring to the word "cremation." Accordingly, the term "aquamation" describes a funeral technique based on alkaline hydrolysis. Such a technique is currently used in Europe as a funeral technique for animals, and its use for humans is increasingly being discussed, the technique is considered to be an ecological funeral practice.
In order to evaluate the descriptive nature of a trademark, it is necessary to assess whether it is reasonable to consider that the trademark will indicate, in the future, the characteristics of the goods and services designated by it. Provision should be made for the fact that, based on growing environmental awareness, it is likely that an increasing number of consumers will be interested in an environmentally friendly alternative to cremation in order to reduce their carbon footprint. Accordingly, the relevant public would perceive the term "aquamation," in the context of the goods and services covered by the trademark in question, as referring to an alkaline hydrolysis technique, therefore "aquamation" is descriptive of the goods and services it designates.
The issue of so-called green trademarks clearly shows that it is difficult to create a trademark that is registrable as well as an “ecological” one. It should be borne in mind that marks that will clearly and directly emphasize the pro-environmental aspects of products and services will not be able to gain a protection.
