Green marketing and IP: opportunities and legal risks for companies

published on 6 May 2025 I reading time approx. 6 minutes

Green product packaging with promising imprints ranging from “climate-neutral” to “sustainable” and “eco-friendly” can be found almost everywhere today. Many companies have already become aware that the legal requirements of the Green Claims Directive, for example, must be taken into account when communicating sustainability in this way. Companies often try to cleverly circumvent these requirements. However, environmental advertising in accordance with the Green Claims Directive is not limited to statements such as “100% climate neutral” or “sustainably produced”. The design of brands must also be measured against the standards of current legislation. There are therefore more legal risks lurking here than is generally assumed.

And: more and more companies are relying on so-called greenfluencers. The prevailing myth is that companies are not liable for the statements made by greenfluencers. But is that really true?

What are green trademarks?

More and more companies are expressing their commitment to the environment not only in advertising texts, but also directly in their brand image: Be it through green colors in the company logo, through nature-oriented graphic designs such as plant or leaf symbols or also through the addition of word elements such as “green”, “eco” or “natural” in their product brands. However, both the registration and long-term maintenance of such a “climate trade-mark”, as well as its legally compliant use, are associated with hurdles that many applicants are simply not aware of in advance.

Green trademarks: sustainability as a brand

The application for a “green” trademark can fail due to absolute grounds for refusal according to § 8 MarkenG (Trademark Act). These include in particular:

Purely descriptive indications: A sign is “purely descriptive” if, in the opinion of the targeted public, it can designate the designated goods or services in at least one of its possible meanings, either directly or by reference to one of the essential characteristics. Examples are “Eco-Trend” and “Ökoplus”, which have already been rejected by the German Patent and Trademark Office as purely descriptive.
Lack of distinctive character: Signs without distinctive character are excluded from trademark registration as they do not provide an indication of commercial origin. Terms used in everyday language or general advertising slogans do not fulfill this function of indicating origin. Therefore, the EUIPO also rejected trademarks such as “SAVETHE-OCEAN” and “SAVE OUR EARTH NOW”.
Deception: Trade marks may not deceive the public (Section 8 (2) No. 4 MarkenG). This ground for refusal serves the purpose of consumer protection and transparency. Designations that express environmental compatibility or sustainability can be deceptive. Trademarks such as “biovinyl” or “healthy vinyl” were rejected by the Federal Patent Court as they can create false expectations of the environmental compatibility of the products.

Greenfluencers: opportunities and risks of sustainable brand ambassadors

Green, eco or meaningful influencers as well as sustainable and ethical bloggers focus on environmental protection, sustainability and climate change. They create awareness of ecological issues, promote sustainable products and inspire environmentally friendly behavior. They educate people about climate protection and nutrition, criticize fast fashion and present zero-waste concepts.

However, not all greenfluencers have specialist expertise. Incorrect or misleading statements can lead to breaches of competition law and give rise to liability.

Legal consequences and current developments

Anyone who advertises with environmental promises - be it in their brand image or by means of greenfluencers - is operating in a legally sensitive area. Green marketing is no longer a legal vacuum - on the contrary: the requirements for transparency, verifiability and truthfulness of environmental claims are constantly increasing.

I. Legal violations due to “green” advertising

To date, there is no specific legislation governing the use of green trademarks and advertising by green influencers. However, green trademarks or environmentally related advertising - whether through classic campaigns or influencers - are subject to the regulations of the Unfair Competition Act (UWG) and the underlying European Directive 2005/29/EC on Unfair Commercial Practices (UCP Directive).

Unfair trading under the UWG occurs when untrue or misleading statements are made about essential characteristics of goods or services. Brand elements expressing sustainability such as “eco-friendly”, “by nature”, “net zero” or “green” are claims in this sense and must therefore be true if they are used. The dissemination of false or inaccurate environmental information by greenfluencers can also be unfair and therefore constitute an infringement of competition law. The same applies to potentially disparaging statements about supposedly inferior competitor products or unfair advertising comparisons.

Since 2021, there have been many higher court decisions that place high demands on the permissibility of environmental advertising. Advertising with environmental protection terms is handled as strictly as health advertising, which is often considered excessive. There is a high degree of legal uncertainty and a high risk of warnings and lawsuits. The German environmental organization Umwelthilfe, for example, is seeking many legal clarifications, which means that the probability of legal proceedings following warning letters is high.

This legal risk will be exacerbated in future by significantly stricter rules for environmental advertising. As part of the “European Green Deal”, the EU presented proposals for two “sister directives” with specific regulations on environmental and sustainability claims and on quality labels (sustainability seals / eco-labels) as early as 2022/23. As a lex generalis, the so-called “ECGT Directive” (Empowering Consumers for the Green Transition Directive (EU) 2024/825, EmpCo Directive for short) therefore came into force at the end of March 2024 and supplements the UGL Directive. The member states must transpose the requirements contained therein into national law by March 27, 2026 and apply them from September 27, 2026. In addition, the proposal for a directive on the substantiation of explicit environmental claims and related communication (Green Claims Directive-E for short) published in March 2023 is intended to supplement the UCP Directive, including the EmpCo Directive, as a lex specialis. This has yet to be adopted.

Both directives contain bans on blanket environmental claims without evidence and on climate-related compensation promises if these lie outside the company's own value chain. These legal regulations must also be complied with when using green fluence and green trademarks.

II. Legal violations by greenfluencers

The use of greenfluencers can also lead to legal infringements. In general, the use of music, images, videos or third-party brand logos without the corresponding permission of the rights holder can trigger claims under both copyright and trademark law. If the necessary labeling as advertising is missing, there may also be claims under the Unfair Competition Act. However, the legal requirements described above must also be observed specifically with regard to “green advertising” by influencers.

III. Liability and attribution

A common misconception: companies are not liable for statements made by green influencers. However, the law takes a different view. Companies are liable for their advertising statements, regardless of whether they originate from internal company influencers or external advertising ambassadors. This is because, according to Section 8 (2) UWG, companies are also liable for employees or agents for omission and removal.

However, Section 8 (2) UWG only applies to attribution in unfair competition law; there is no comparable attribution provision in trademark or copyright law. However, there is a risk that a court will take the view that such infringements were carried out on behalf of or at least with the knowledge of the company, or at least that the company has appropriated them if they are liked or shared.

It is therefore all the more important to contractually regulate cooperation with greenfluencers. Contracts should take into account the services to be provided, rights of use and labeling obligations. In the case of influencers, these agreements should cover the content of the posts, channels, publication frequency and exclusivity of the collaboration. Reporting or release obligations and indemnification agreements in the event of infringements of third-party rights are also important.

Sustainability yes - but legally compliant

The legal requirements for environmental brand communication are increasing. Companies are well advised to carefully plan and secure their green trademarks and green influencer strategies. Transparency, verifiable statements and contractually regulated cooperation are essential - not only for legal certainty, but also for the sustainable credibility of a company.

Do you have questions about Green Trademarks and Greenfluencers? Write to us!