Intellectual Property and Sustainability in the EU - Trademarks in the Age of Circular Economy and the European Green Deal

Abstract: The European Green Deal and the subsequent action plans, including the “Action Plan on Circular Economy” and “A new Industrial Strategy for a globally competitive, green and digital Europe”, recently adopted by the European Commission, indicate that sustainability and environmental concerns, among others, are becoming more and more important in the eyes of the legislator. Sustainable development is one of the core objectives of the European Union, as indicated in Article 11 TFEU, Article 3(3) TEU and Article 37 CFR. It is to be expected that even more emphasis will be put on those issues in the future as climate concerns grow bigger. In this context, one can wonder how the current legal framework, and especially the European Trademark law and its interpretation by the Court of Justice, will be adapted to better match the changing societal needs. Although the current state of case-law surrounding trademark infringement does not involve many cases directly related to sustainability, it must be argued that the position of the CJEU in the past gave quite a strong protection to brands, thereby leaving little room for sustainable initiatives using an existing trademark to take place. Nonetheless, as the political agenda shifts towards including sustainability to a greater extent, it is relevant to investigate how trademark law can change.