EmpCo directive:

Risks for

trademarks

9. December 2025

from

Clemens Pfitzer

Trademarks such as “EcoClean”, “GreenTech” or “BioNatur” may sound good and sell well. But when the EmpCo Directive comes into force on September 27, 2026, an explosive question arises: will your own brand name suddenly become a problem under competition law?

Background to the EmpCo Directive

The EmpCo Directive contains strict rules on environmental claims to combat greenwashing . The term “environmental claim” is deliberately defined broadly. Not only classic advertising slogans are covered, but also explicitly trademarks, company names and product names. This results in considerable legal uncertainties for trademark owners.

What does that mean in concrete terms?

The definition of “environmental claim” in the directive includes “representations by means of text, images, graphic elements or symbols such as labels, brand names, company names or product names”. This means that a brand name can also be an environmental claim – and therefore subject to the new strict requirements.

The German draft bill for implementation in the UWG adopts this broad definition. In future, a green design of a brand name or a company name with an ecological reference alone could therefore be considered an environmental statement.

When is a trademark an environmental statement?

This is the problem: the directive does not provide any clear criteria. There are no official guidelines on when a brand name qualifies as an environmental claim. Although there are FAQs from the EU Commission, these also leave many questions unanswered. This uncertainty affects various groups of cases:

Clear cases

Cases in which brand names contain explicit environmental terms appear relatively clear. Trademarks such as “GreenClean”, “EcoPlus”, “BioNatur” or “KlimaNeutral” are likely to qualify as general environmental claims according to the wording of the Directive. Such trademarks directly suggest positive environmental characteristics and are therefore subject to the new substantiation and proof requirements.

The difficult borderline cases

However, the numerous borderline cases are much more problematic:

• Ambiguous brand names: What applies to trademarks that can have both an environmental statement and another, non-environmental meaning? A brand name such as “Natura” could refer to natural ingredients, but could also simply function as a fantasy name. The same applies to terms such as “Pure”, “Fresh” or “Clean”, which can be understood as either environmentally related or purely descriptive, depending on the context.
• Associative terms: What about trademarks that indirectly suggest environmental friendliness without explicitly saying so? Names that are reminiscent of nature, forests, oceans or animals could evoke ecological associations in consumers, even if they do not make a direct environmental statement.
• Coloring and figurative marks: The directive also explicitly covers graphic elements. Green color schemes, leaves, trees or other nature symbols in the trademark logo could be considered an implicit environmental statement – even if the word element of the trademark has no environmental reference.
• Historic trademarks: The situation is particularly tricky for trademarks that have existed for years or decades and whose original meaning had no environmental reference. A company that chose the name “Grünwald” 30 years ago could today be confronted with the accusation of making an environmental statement, even though the background to the name was completely different.

The tension between trademark law and competition law

Registration versus use

A trademark may be registered with the EUIPO or DPMA and still not be allowed to be used without further ado if its use violates the new greenwashing prohibitions. The Directive does not concern the registrability but the usability of trademarks. This means that registration does not automatically mean permission to use.

No exception for registered trademarks

The Directive does not provide for any privileges for registered trademarks. A trademark owner cannot rely on the fact that his trademark has been officially examined and registered. The trademark office does not check whether the trademark meets the requirements of competition law when registering it – this remains a separate legal issue.

Specific risks for trademark owners

• Cease and desist letters and lawsuits under competition law
  From September 2026, competitors and competition and consumer protection associations will be able to attack the use of a trademark as unfair if it is deemed to be an unsubstantiated environmental statement. The implementation in the German Unfair Competition law expands the “black list” of unfair commercial practices per se to include several new offenses relating to environmental claims. Violations can be prosecuted with claims for injunctive relief, removal and damages.
• Official sanctions
  The Member States are obliged to provide for effective sanctions. The German draft bill provides for an expansion of fines. Serious or repeated infringements could result in severe fines.
• Investment losses
  Trademarks are often the result of considerable investment in development and maintenance. If an established trademark can no longer be used due to unfair competition law concerns, these investments can be devalued and the trademark can ultimately be canceled due to lack of use. Rebranding is costly and entails the risk of losing established market positions.

Unresolved questions of interpretation

The practical application of the EmpCo Directive to trademarks raises numerous questions of interpretation that neither the Directive itself nor the national draft transpositions to date have conclusively clarified:

• Standard of public perception:
  From whose perspective is it to be assessed whether a trademark constitutes an environmental statement? The Directive refers to the “average consumer”, but how exactly the average consumer perceives ambiguous trademarks is an open question and entails considerable legal uncertainty.
• Context dependency:
  Can the same trademark make an environmental statement in one product segment and not in another? A “GreenTech” for gardening tools may be perceived differently than for software.
• Burden of proof and evidence:
  How can a trademark owner prove that its trademark is not an environmental statement? Does he have to actively prove that consumers do not understand the name in an environmental sense?
• Transitional arrangements:
  The German draft bill does not provide for any explicit transitional regulations for products with established trademarks that are already on the market. Industry associations are calling for corresponding regulations in order to avoid the destruction of products and packaging materials.

Recommendations for trademark owners

In view of the remaining legal uncertainty, trademark owners should act proactively now:

• Brand portfolio audit:
  Check your entire brand portfolio for potential environmental references – not just obvious terms such as “eco” or “green”, but also more subtle associations through color schemes, figurative marks and associative names.
• Risk assessment:
  Categorize your trademarks according to risk potential. Trademarks with explicit environmental terms require immediate action; for borderline cases, monitor case law developments.
• Check substantiation:
  For trademarks that could be evaluated as environmental claims, check whether the suggested environmental properties can actually be proven. If this is not the case, alternatives must be developed.
• Specification in communication:
  The Directive allows general environmental claims if they are specified “clearly and prominently” in the same medium. For trademarks, this could mean using accompanying explanations.
• Long-term trademark strategy:
  For new applications, careful consideration should be given to whether environment-related terms actually make sense or whether neutral fantasy trademarks represent the lower risk.

Conclusion

We are happy to

You are welcome to

EmpCo guideline!

Contact form

Call now!