EU greenwashing directive puts green trade marks under pressure in Germany
Published on 9 June 2026
Trade mark portfolios face a tight deadline with EU green claims rules taking effect in Germany in September.
Update (28 September 2026): Section 15b of the German Act against Unfair Competition (UWG) – Special provision for existing stockThe new provisions of the UWG on environmental claims and sustainability labels implementing the EmpCo Directive have been in force since 27 September 2026. Unlike what is often the case with legislative amendments, no sell‑off period was provided for products already placed on the market – as a rule, existing stock is therefore directly subject to the new requirements, including the per se prohibitions contained in the “blacklist”. By introducing, at short notice, a special provision in the new Section 15b UWG, the German legislator nevertheless created a special relief measure for existing stock on 24 September 2026 – just three days before the reform entered into force. However, this does not amount to a carte blanche for goods placed on the market before 27 September 2026: For this period, injunctive claims under Section 8(1) UWG against non‑compliant products that were placed on the market before 27 September 2026 can only be enforced following a case‑by‑case balancing of interests. In the context of this comprehensive balancing of interests, the following factors must in particular be taken into account:
The special provision in Section 15b UWG is a temporary rule. It applies for two years and will cease to have effect on 27 September 2028. For products newly placed on the market from 27 September 2026 onwards, the new UWG provisions apply in full and without such relief. Section 15b UWG also does not apply to digital communications or printed advertising materials. Companies that continue to sell existing stock should prepare by documenting the date on which the existing‑stock products were first placed on the market and the circumstances that may be relevant for the balancing of interests. |
Sustainability remains a priority for many consumers, whether when shopping, choosing an energy supplier or planning their next holiday. Consequently, sustainability‑related statements are a central aspect of many marketing and branding strategies. From packaging designs with leaf motifs and claims such as “climate neutral”, “sustainable” or “environmentally This has prompted lawmakers to develop clear standards defining who may advertise on sustainability ground and under what conditions. The aim is to curb “greenwashing” and give genuinely committed companies the opportunity to position themselves clearly and recognisably.
New green rules will now enter into force throughout the European Union on 27 September, with , the Empowering Consumers Directive (EU) 2024/825, or the EmpCo Directive, adopted as part of the so‑called European Green Deal. New provisions of Germany's Unfair Competition Act (UWG) take effect from that date, tightening the law on advertising sustainability claims. The new rules are far‑reaching and, in some respects, strict and t do not only affect classic advertising claims. What is not immediately obvious is the new competition rules will also have a significant impact on the usability and even the register status of existing and future trade marks and other signs.
Three post-EmpCo Directive innovations
The Third UWG Amendment Act implementing the EmpCo Directive was executed on 12 February this year. The new German laws adopt the directive's provisions without meaningful variations: as a result, lawmakers and lawyers all over Europe will have to deal with more or less the same concepts, questions and answers. Three new categories of prohibited conduct are particularly relevant for trade mark law.
The first new category is prohibition of non-certified sustainability labels. Under no. 2a of the annex to section 3(3) of the amended UWG, affixing a sustainability label that is neither based on a recognised certification scheme nor established by public authorities is always unfair. The second is a prohibition of unspecified general environmental claims. Under section 5(2) sentence 2 no. 1 in conjunction with section 2(2) no. 1 of the amended UWG, general environmental claims such as “environmentally friendly”, “green” or “climate-friendly” are only permissible if a recognised outstanding environmental performance is demonstrated.
The third is a prohibition on compensation‑based climate‑neutrality claims. Under no. 4c of the annex to section 3(3) of the amended UWG), product-related climate-neutrality claims that are based wholly or partly on the purchase of greenhouse‑gas compensation certificates are per se prohibited.
These and other categories of prohibited conduct – and their constituent elements – under the UWG reform's greenwashing ban have wide-ranging consequences for environmental advertising claims; however, the implications of the new rules for trade mark law are also significant and wide ranging.
Risk areas for trade marks
There are three central risk areas for trade marks: use as sustainability labels, as genera environmental claims and compensation-related environmental claims. Some of the new provisions also apply to the use, registration and cancellation of protected signs such as trade marks, business identifiers and company names.
Sustainability labels
Under no. 2a of the annex to section 3(3) of the amended UWG, affixing a sustainability label that is neither based on a certification scheme nor established by public authorities is always unfair. This element of the “blacklist” establishes a blanket prohibition which, once its constituent elements are met, is difficult to counter. If a product design qualifies as a sustainability label, the relevant label may in principle not be affixed to a product.
A sustainability label is legally defined as “any voluntary trust mark, quality mark or equivalent, either public or private, that aims to set apart and promote a product, a process or a business by reference to its environmental or social characteristics, or both, and excludes any mandatory label required under Union or national law” (section 2(2) no. 4 of the amended UWG). This covers signs which, from the perspective of the relevant public, demonstrate independent third-party verification of ecological or social aspects. This will frequently be the case with signs that exhibit a typical “seal” design, for example oval or round with a surrounding border, colour design and word elements such as “tested”, “certified” or “standard”.
Trade marks can also be sustainability labels. While the law explicitly includes the special form of the certification mark, it is likely also to apply to simple trade marks such as individual and collective marks. Academic debate continues on this point; however, there is much discussion that is in favour of this view. The decisive factor is the actual impression on the relevant public, not the situation in the trade mark register. Use of a trade mark that gives the relevant consumers the impression of being a sustainability label is only permissible if, in its form, it is established by public authorities or based on a certification scheme within the meaning of section 2(2) no. 6 of the amended UWG. Since the former will not usually be the case for private trade marks, certification will gain considerable importance in future. This requires, in particular, verification by independent third parties against objective system standards, openness of the certification scheme to all traders under transparent, fair and non-discriminatory conditions and a sanctions mechanism in the event of breaches of the certification scheme.
Private “self-certification” does not generally satisfy these requirements at present. The new rules therefore mean the end of self-certification in respect of social or ecological aspects, unless the self-created label is verified by independent third parties in compliance with the listed objective requirements. A reliable assessment will always depend on the circumstances of the individual case.
General environmental claims
A general environmental claim arises under section 2(2) no. 1 of the amended UWG where a written or oral environmental claim does not have a specification that is clearly and prominently indicated in the same medium. Examples given by the legislator include “environmentally friendly”, “eco-friendly”, “green”, “nature’s friend”, “ecological”, “climate‑friendly”, “carbon friendly”, “biodegradable” or “biobased”.
Trade marks, company names or company logos can expressly constitute environmental claims. The legislator has clarified this in section 2(2) no. 5 of the amended UWG and also article. 1 lit. b EmpCo Directive, which explicitly mentions “brand names” as a form of expression. Affixing a “green” trade mark to a product therefore has the same effect under unfair competition law as advertising with the corresponding environmental message.
General environmental claims are only permissible where a recognised outstanding environmental performance is present; for example, through the EU Ecolabel or national equivalents under DIN EN ISO 14024 Type I, such as the “Blauer Engel”. The European Commission sets a clear direction: the safest and most comprehensive way to continue to advertise with general sustainability is to seek an EU Ecolabel or its national equivalents.
Another way of continuing to use trade marks that contain or consist solely of general environmental claims in compliance with the law lies in adapting the specific presentation of the trade mark. A general environmental claim is only present where its content is general; that is, unspecific and open to interpretation. One option here is clear and prominent specification of the claim by adding further information in the same medium. The general claim must be clearly recognisable and explained in a distinct way in the same medium so that an objective review of its accuracy is fundamentally possible. The extent to which explanation must be provided within the trade mark presentation itself, or in the context of its use, has not yet been clearly determined. The details of the individual case will regularly be decisive.
Compensation‑related claims
An absolute per se prohibition on product‑related climate‑neutrality claims based on greenhouse‑gas compensation will soon enter into force on 27 September. Under the previous legal position, based on section 5(1) of the old version of the UWG, compensation‑related claims were in principle still permissible with sufficient contextualisation; no. 4c now codifies and tightens the standards developed by the Federal Court of Justice by introducing an absolute per se prohibition without a case‑by‑case corrective.
Trade marks containing elements such as “climate neutral” or “CO₂ neutral”, where the asserted climate neutrality is based wholly or partly on the purchase of compensation certificates, can no longer be used in a manner compliant with unfair competition law in business-to-consumer (B2C) dealings from the effective date. Otherwise, claims for injunctive relief under unfair competition law may be brought and, where the use is capable of misleading as to the nature of the goods identified, the mark may be revoked under section 49(2) no. 2 of the German Trade Mark Act, or MarkenG.
Company‑related compensation claims remain in principle permissible; for example, in a sustainability report or in corporate communications. However, these must be assessed under the general test for misleading practices in sections 5 and 5a UWG. Whether this distinction will allow scope in individual cases for (merely) company‑related trade mark use remains to be seen.
No transitional relief
In terms of "grandfathering" and transitional periods, there is no reason to sound the all clear. The European Commission has expressly stated that registration of a sign as a trade mark does not give rise to an exception to the new rules on competition law. Whether a trade mark may lawfully continue to be used in future therefore does not depend on whether or not it is entered in the register.
The new version of the UWG likewise contains no general transitional provisions for existing trade marks. For goods, packaging and advertising materials already produced, the federal government refers to the possibility of hardship solutions granted by the courts. Trade mark proprietors cannot rely on these, however. The granting of deadlines by the courts depends on the individual case and requires a balancing of the interests affected in that case. Particularly problematic is the fact that new certification schemes complying with the future requirements of the new section 2(2) no. 6 of the amended UWG have not yet been established, and lead times for products, packaging with seals printed on them and marketing materials can, in practice, be up to 12 months. Waiting for sell off periods is therefore not a viable portfolio strategy.
Unfair 'green' trade marks
From the date the new rules enter into force, use of trade marks towards consumers that do not meet these requirements will be unfair. Competitors and consumer associations can take action under competition law by means of cease‑and‑desist letters (Abmahnungen), interim injunctions or actions. They also have the option of taking steps under trade mark law. Revocation or cancellation applications may be brought where trade marks are used in a way that creates a risk of misleading the relevant public. Prohibition under competition law can in many cases be prevented by targeted measures, subject to a review of the specific use in trade towards consumers. Here, and in the context of registration of new trade marks, the practice of the trade mark offices will be particularly important.
Osborne Clarke comment
Proprietors of trade mark portfolios with a sustainability connection are well advised to consider taking a number of actions before 27 September.
A fist step is a seal scan. Are trade marks used in a B2C context in a way that leads the relevant public to understand them as indicating a testing or certification function? This risks classification as a sustainability label within the meaning of section 2(2) no. 4 amended UWG.
If this is the case, it is worth considering whether the trade mark is certified in accordance with section 3(3) no. 2a of the amended UWG, and enquiring with the label provider about their plans for implementing the EmpCo Directive or about relevant certification bodies.
An environmental claim scan is also advisable. Do the trade marks contain word elements or graphic designs that can be classified as general environmental claims within the meaning of section 2(2) no. 1 of the amended UWG. Examples include “green”, “eco”, “climate neutral”, “environmentally friendly” or elements such as “natural”, “recycle”, “eco” and “renewable”. Could such a perception also arise due to the overall design of the product?
A verification check would then be appropriate: does the asserted environmental performance have an EU Ecolabel, an ISO 14024 Type I label or another recognised outstanding environmental performance under Union law? Is this verification product related and sufficiently specified?
If not, an adaption of use, covering packaging, online, advertising materials, by 27 September or discontinuation of use, should be considered. Registration alone does not provide protection.
A compensation check is also warranted where an environmental claim is based wholly or partly on CO₂ compensation. No. 4c of the annex to section 3(3) of the amended UWG per se prohibits this for product related claims. If so, the advertising claim should be reviewed and, in case of doubt, discontinue use.
Revocation and cancellation monitoring is prudent from the date the new rules enter into force: proactively monitor whether competitors or rights protection associations file revocation and cancellation applications. For new filings, a review should be considered of whether the sign can already be used in a manner compliant with unfair competition law at the time of filing.
