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

In an era where a significant percentage of consumers are willing, at least in principle, to pay a higher price for eco-sustainable products, many companies are keen on demonstrating their environmental sensitivity to consumers, often using “green trademarks.” However, recent surveys indicate a prevalent issue of companies engaging in greenwashing, providing consumers with vague, misleading, or unsupported information regarding the environmental credentials of their products. The European Union trademark law encompasses inherent measures to counteract greenwashing. Both Regulation (EU) 2017/1001 and Directive (EU) 2015/2436 stipulate that trademarks cannot be registered or used if they have the potential to deceive the public, and the Court of Justice of the European Union has clarified that these rules also apply when the public is misled about a product’s environmental qualities. Despite this, the application of provisions on deceptive trademarks to reject the registration of green trademarks remains exceptionally rare. In this essay, the author delves into the reasons behind the limited use of provisions on deceptive trademarks, analyses the phenomenon of greenwashing in light of Directive 2005/29/EC on unfair commercial practices, and proposes the application of principles from that directive, as interpreted by the European Commission, to strengthen trademark law in combating corporate greenwashing.