Author: Giovanna Del Bene
Labels represent a fundamental marketing asset also in the Beverage sector, as they play an important role in the relationship between the producer and the consumers. In fact, in addition to carrying out an informative function for the consumer, the label also helps to communicate the very value of the product and can, therefore, make a difference in the moment of purchase, orienting the choice on a product compared to another. Generally, “label” in the Food & Beverage sector shows all the information (trademarks, images, symbols, indications and so on) on the packaging or on the bottles.
In this respect, the rules specifically relating to labelling are often confused with those laid down for the protection of the trademark. The label is to be considered as the “identity card of the product” and contains information on the characteristics of the same and the indications (mandatory and optional) required by law to be able to put in a market that specific product (for example, the name of the beverage, the type, the raw material, any alcohol content, the country of origin, the expiry date, the storage conditions, the producer’s data and so on).
Instead, we can say that the brand represents the “business card” of the company. The trademark is the distinguishing mark which has the main purpose of distinguishing the products and services of a company from those of other companies, indicating the entrepreneurial origin. However, the brand not only has a purely distinctive function but also performs an important advertising and communication function, guaranteeing quality and attracting the consumer. In general, the registration of the trademark is not required by law but only through it is possible to obtain exclusive protection on the name of the product and/or the commercial name of the company or on the graphic elements of the label or packaging. It is advisable to proceed with the registration of the trademark, when planning promotional or advertising investment activities and, in any case, before placing on the market (domestic or abroad) your product and before presenting the product to third parties (customers, agents, distributors, etc. etc.). All this to avoid that third parties can register the trademark in their own name on bad faith, thus illegally exploiting the goodwill linked to it and blocking the entry into that market to the legitimate owner.
Among the various indications on the label, entrepreneurs often include self-declarations regarding the impacts, aspects or environmental performance of the product or operator, such as the words “bio”, “eco”, “sustainable” or “made from recycled plastic bottles” or “ocean friendly” or “climate friendly” or “delivery with CO2 compensation”.
These are the “Green Claims” that many companies arbitrarily decide to include in the label, to try to accommodate the new sensitivity of consumers towards the environment and the needs of sustainability. The association of the brand or product with environmental issues is an increasingly common commercial practice. However, it is important to distinguish between “Green Marketing” and “Greenwashing” and know the legal implications of the latter.
Green Marketing is a marketing approach that focuses on the promotion of products and services with low environmental impact, with the aim of meeting the needs of consumers oriented towards ecological purchasing. In total transparency and complete consumer protection, it aims to communicate the eco-sustainability that is the basis of certain products and services, through the promotion of ecological business practices and the obtaining of environmental certifications.
On the basis of a study conducted by EUIPO in recent years (see Green EU trademarks: update 2022 – data for the period 1996-2021) the number of “green marks” has also increased. In 2021, the EU countries that registered the most “green marks” in the European Union were Germany, Spain, France, Italy, the Netherlands and Poland. The main product groups covered by these green EUTMs are «Energy conservation» and «Energy production» (over 48%), «Pollution control» (18%) and «Transportation» (11%). According to EUIPO, a European Union Trademark is considered “green” if its list of products/services contains at least one term “green” and refers to a sign that intends to communicate that it is an environmentally friendly good, service or business practice.
However, there is a high risk that these marks will be rejected by EUIPO because they often lack any distinctive character or consist exclusively of indications and signs describing the characteristics of the involved goods and services or because they are considered misleading to consumers.
The use of Green claims can be an effective marketing strategy for companies looking to attract consumers oriented towards sustainable purchasing, but it is important that these claims are true and correct. Current regulations require that product information is provided accurately and clearly and that ecological claims are verifiable, not to fall into the phenomenon of so much harmful Greenwashing. In fact, the improper or misleading use of green claims by a company, especially if in association with its brands, can damage the reputation of the company itself, making the brands deceiving and ending up having a negative impact on consumer confidence.
Greenwashing is a deceptive marketing practice, which is reflected in the brand reputation, through which some companies try to communicate in a misleading way an image of environmental sustainability, without having an effective positive impact on the environment. The term “Greenwashing” is manifested through the use of eco-labels, statements and symbols that can even deceive the consumer about the real environmental characteristics of a product or service, with the intention of driving the purchases, failing to provide useful tools to the consumer to verify whether the ecological claims are true or whether the declared environmental benefits are objectively verifiable.
On 22 March 2023, the European Commission published a proposal for a directive, known informally as the “Green Claims Directive”, to provide common guidelines to all member states for proper environmental communication. The aim of the directive is to put a brake on self-declarations, to provide consumers with clearer, more reliable and more verifiable information, so as to ensure that the products and services chosen are genuinely environmentally friendly. In addition, the Commission wishes to enhance and enhance the competitiveness of companies seriously committed to environmental sustainability.
The proposal will now be submitted for the approval of the European Parliament and the Council and if it is approved, Companies that use self-declarations or trademarks for green marketing purposes should ensure that the claimed environmental properties of their products and services are independently verified and validated by scientific evidence. Furthermore, it will no longer be allowed to indicate the overall environmental impact score of a product and comparisons with other products or companies will require equivalent information and data. The proposal also covers the regulation of “environmental labels”. According to the Commission, there are currently at least 230 different marks with a clear risk of confusion for consumers. Therefore, “only labels developed at EU level will be allowed, unless sufficient evidence is presented and the label is approved by the EU. The only indications excluded from the proposal are those already covered by existing or future EU regulations, such as the EU Ecolabel or the organic food logo”.
With regard to possible sanctions in the event of a breach of the rules, the Directive provides that it will be up to the Member States, through a control system, to introduce effective, proportionate and dissuasive fines for offenders, with amounts defined according to the nature and gravity of the infringement.
Finally, it is important that companies that use green marketing provide clear, verifiable, and certified information on the environmental properties of their products. Moreover, before applying to register or use green trademarks, they should pay attention to the possible risks of refusal by the competent Trademark Offices because of lack of distinctiveness or descriptiveness or else considered misleading for consumers.
© THINX Srl – May 2023