Deceptively Green: How the EU’s Unfair Commercial Practices Directive Can Support Trademark Law in Combating Corporate Greenwashing

Corporate greenwashing is becoming an increasingly common issue in a market where many consumers are seeking to make environmentally conscious choices. However, false, misleading, and unsubstantiated environmental claims made by companies not only mislead consumers, but also harm competitors that are genuinely making efforts to improve their products and activities, and ultimately lead to a less green economy. As known, trademarks play a crucial role in directing consumers’ choices, but they can only perform this function properly if they are non-merely descriptive and non-deceptive. In December 2021, the EU Commission tackled the issue of corporate greenwashing in its Guidance on the interpretation and application of Directive 2005/29/EC concerning unfair commercial practices. The Guidance has clarified that environmental claims must be truthful and evidence-based and presented in a clear, complete, specific, accurate, and unambiguous manner to prevent misleading consumers. The Guidance has also clarified that greenwashing can occur through various means including statements, information, symbols, logos, graphics, and brand names. Therefore, as a rule, if a company conveys environmental statements through its name, brand name, product name, etc., and the name is used for marketing purposes, such marketing is subject to the same substantiation requirements as other environmental claims. Despite trademark law being a lex specialis with respect to unfair commercial practices law, if a brand name or product name is (used or) registered as a trademark, such trademark must also comply with the rules provided for by the UCD directive (interpreted in the light of the Commission’s Guidance). However, applying such rules to trademarks can be challenging. While clear, complete, specific, accurate, and unambiguous environmental information provided through a trademark may result in a merely descriptive trademark that cannot be registered, the requirement to provide such information to avoid unfair commercial practices can also lead to a significant increase in deceptive (and, hence, invalid) trademarks, as trademarks are unlikely to provide such detailed information about the environmental qualities of a product or service. Considering the above, this paper aims to examine how the rules on unfair commercial practices and trademark law intersect in the fight against corporate greenwashing.