Consequences of the Implementation of the EmpCo Directive for Trademarks and Business Names

Directive (EU) 2024/825 on empowering consumers for the green transition (the so-called “Empowering Consumers” or “EmpCo” Directive) brings significant changes to environmental advertising. 

The new requirements, which apply exclusively to the B2C sector and are implemented through a revised version of the UWG, will take effect on September 27, 2026. As things stand, no transition period is planned.

I. Scope of Application of the New UWG Rules

The amendment to the UWG introduces several categories of environmental business practices, each of which is subject to separate regulations. 
Specifically, this applies, among other things, to:

• “general environmental claims” that, due to a lack of specificity in the same medium, pose a particular risk of misleading consumers;
• “sustainability labels,” which in the future must be based on a certification system or be established by the government;
• “future environmental performance,” i. e., statements about environmental performance not yet achieved that are linked to a robust implementation plan; 
• product-related statements regarding environmental or climate friendliness through “offsetting of greenhouse gas emissions,” which will be prohibited in the future.

In our HEUKING series, Part 1 dealt with general environmental claims, Part 2 with sustainability labels, Part 3 with future environmental performance, and Part 4 with the offsetting of greenhouse gas emissions. This article examines the consequences for trademarks and corporate logos.

II. Applicability of the New Prohibitions to Signs

The provisions of the EmpCo Directive do not distinguish between whether an advertising claim is protected as a trademark or a corporate sign (collectively: signs). Such advertising claims may now only be used under the prescribed conditions. In the opinion of the European Commission, even the subsequent cancellation of trademarks that violate the Directive should be considered.

1. Signs as “general environmental claims”

In addition to its distinctive element, a trademark may also contain elements with ecological significance (e. g., eco, green, climate-neutral). Since trademarks are typically short and concise, a more detailed explanation is usually lacking, meaning they may constitute a general environmental claim, which is only permissible under strict conditions (see ESG Update 1/2026). The overall impression is decisive: the prohibition applies only if the average consumer perceives the trademark as an environmental claim.

In the case of corporate trademarks, classification as a general environmental claim is often questionable, as consumers typically perceive them merely as a reference to the company. However, such a classification cannot be ruled out in individual cases.

The trademark user can counteract a classification as a general environmental claim by providing a clear explanation on the same medium (e. g., product packaging or advertisement). However, the general requirements for permissible advertising practices and the specific provisions of the EmpCo Guidelines remain applicable.

2. Labels as “Sustainability Seals”

Trademarks may also be classified as sustainability labels, particularly if they are intended to indicate specific ecological or social product characteristics.

Typically, such trademarks are registered as warranty marks. In the opinion of the European Commission, these should be classified as sustainability labels, meaning their use is permitted only under strict conditions (government designation or certification system) (see ESG Update 2/2026). For regular individual trademarks, the Commission considers this unlikely but not impossible. In the legislative rationale, the German legislature states that regular individual trademarks cannot, in principle, be sustainability labels.

This view is not entirely convincing, as certification logos have also been registered as regular individual trademarks. Case law will therefore likely decide on a case-by-case basis whether a trademark is to be understood as a sustainability label.

3. Marks as statements regarding “future environmental performance”

The possibility that labels might contain statements about future environmental performance is largely theoretical. Such statements are typically not concise enough to qualify as a label. If this is nevertheless the case, their use is permitted only in compliance with the relevant regulations (in particular: implementation plan, external verification) (see ESG Update 3/2026).

4. Labels as Statements on Environmental or Climate Friendliness Through Greenhouse Gas Emission Offsetting

If a label contains a statement regarding environmental or climate friendliness, its permissibility depends on what it is based on. If climate friendliness is to be achieved through the offsetting of greenhouse gas emissions, the statement is absolutely impermissible (see ESG Update 4/2026). In the case of actual reductions, however, the use is not objectionable.

III. Consequences for the Granting of Protection for New Labels

1. German Trademarks

To the extent that German trademarks are applied for after the provisions of the EmpCo Directive come into force, and their use is clearly inadmissible under the EmpCo Directive, the German Patent and Trademark Office (DPMA) could refuse registration of the trademark in question because this would then constitute an absolute ground for refusal under Section 8(2)(13) of the German Trademark Act (MarkenG). 

However, this ground for refusal of registration only applies if it involves a statutory prohibition that prohibits the use of the trademark for the goods and services for which it is to be protected, regardless of the context of the specific use. Whether this is the case with the prohibitions arising from the EmpCo Directive is highly questionable:

The use of a general environmental statement may (apart from cases where the user can demonstrate recognized outstanding environmental performance) also be permissible, for example, by adding explanatory notes during use that transform it into a specific environmental statement. Against this background, a trademark containing a general environmental statement can hardly be refused registration on this ground, since its use is not impermissible under certain circumstances. Trademarks that can be understood as sustainability seals or contain statements about future environmental performance may be lawfully used if certain conditions set forth in the EmpCo Guidelines are met. Whether these conditions are met is not apparent to the Trademark Office in any case, which is, however, a prerequisite for refusing protection under Section 8(2)(13) of the German Trademark Act (MarkenG). Finally, if the trademark applied for constitutes an indication of environmental or climate friendliness, its use is indeed (absolutely) prohibited under the EmpCo Directive if the environmental or climate friendliness results from greenhouse gas offset measures; however, precisely this circumstance is not apparent to the Trademark Office and therefore likely cannot be invoked as grounds for refusing registration either.

The absolute ground for refusal based on the registered trademark’s violation of public policy (Section 8(2)(5) of the German Trademark Act) is also unlikely to apply as a rule. Under German law, this ground for refusal also applies only to cases in which the use of the trademark is impermissible in any event, regardless of its context. Furthermore, this provision covers only violations of regulations that constitute fundamental principles of the legal system; whether this is the case with the provisions of the EmpCo Directive appears, at the very least, questionable.

Overall, therefore, it is unlikely that the restrictive requirements of the EmpCo Directive will lead to a significant change in the trademark registration practice of the German Patent and Trademark Office (DPMA). Regarding the (separately assessable) question of the subsequent cancellation of a trademark already applied for or registered at the time the legal amendment came into force, see section IV below.

2. EU Trademarks

There is no provision in EU trademark law corresponding to German § 8(2)(13) MarkenG. Rather, the relevant absolute ground for refusal under EU trademark law arises from Art. 7(1)(f) of the EU Trademark Regulation (violation of public policy). Here, too, “public order” does not encompass every legal regulation, and it therefore appears at least doubtful whether a violation of EmpCo regulations would be sufficient to preclude trademark registration. 

However, if a violation of the EmpCo Directive is considered a violation of public policy within the meaning of Article 7(1)(f) of the EUTM Regulation, the application of this ground for refusal under EU trademark law – unlike under German trademark law – is not precluded merely because certain facts necessary for assessing the legal violation are not apparent to the European Union Intellectual Property Office (EUIPO); rather, the EUIPO may, in principle, conduct the necessary supplementary factual investigations ex officio.

Furthermore, under EU trademark law as well, the assessment of whether the ground for refusal applies cannot be based on circumstances accompanying the use of the mark, meaning that a refusal of registration cannot, in any event, be justified solely on the grounds that the applied-for mark contains a general environmental statement. 

3. Trade names

Unlike trademarks, corporate identifier rights cannot be created through registration but arise rather through their owner’s (authorized) use in the course of trade. If the use of a new corporate identifier occurs only after the prohibitive provisions of the EmpCo Directive have entered into force and such use violates these provisions, the use is not “authorized,” and no corporate identifier right arises.

IV. Consequences for pre-existing signs

It is questionable whether the prohibitions of the EmpCo Directive also apply to signs that already existed at the time the legal amendment entered into force (or, in the case of trademarks: had at least already been applied for). The European Commission assumes this is the case and argues, in particular, that the Trademark Directive even provides for the possibility of canceling trademarks whose use violates national and EU law outside the scope of trademark law (see Section 3 of the European Commission’s Q&A on the EmpCo Directive). 

However, this argument fails to recognize that the subsequent cancellation of a trademark that has already been registered due to the existence of absolute grounds for refusal is, in principle, only possible if the relevant absolute ground for refusal already existed at the time of the trademark application; subsequent changes after the filing date, on the other hand, do not, in principle, permit trademark cancellation. On the other hand, it must be recognized that ownership of a trademark naturally does not give its owner the right to use the trademark in every conceivable manner, including in a manner that violates legal provisions. 

Against this background, there is good reason to believe that, following the entry into force of the prohibitions under the EmpCo Directive, it will be impermissible to use signs in a manner that violates these provisions, even if such signs already existed prior to the entry into force of the legislative amendment (or, in the case of trademarks: were at least applied for). However, it will likely not be possible to remove trademarks applied for prior to this date from the register solely because their use has become impermissible following the entry into force of the amendments under the EmpCo Directive. Corporate sign rights, on the other hand, could lapse if the corporate sign in question is no longer used in an authorized (i. e., legally compliant) manner, but only in a manner that violates the provisions of the EmpCo Directive or the new provisions incorporated into the German Unfair Competition Act (UWG) for its implementation.

V. What are the consequences of violating the EmpCo Directive?

Violations of the provisions of the EmpCo Directive or the UWG in the version effective as of September 27, 2026, are primarily pursued by consumer and competition associations as well as eligible competitors. In practice, this may result in particular in costly cease-and-desist letters and, if an out-of-court settlement is not reached, preliminary injunctions and injunctive relief actions.

This is particularly problematic when trademarks are printed on products or their packaging in a manner prohibited by the EmpCo Directive, as this risks rendering the products unsellable. Potential claims for damages and the risk of reputational damage must also be taken into account.

IV. Recommendations for Action and Outlook

The implementing regulations for the EmpCo Directive present companies with significant legal and practical challenges. There is not much time left until the new provisions of the UWG take effect on September 27, 2026. Companies should therefore ensure in a timely manner that, for example, products or product packaging, print advertisements, and websites no longer contain any content prohibited under the EmpCo Directive by this date at the latest. This also applies where statements prohibited under the Directive are contained in a protected trademark.

It is to be expected that, once the new legal framework takes effect, consumer protection and competition associations in particular will strictly monitor compliance with the new regulations and consistently pursue violations – typically through costly cease-and-desist letters.

We would be happy to assist you in implementing the new UWG rules in a timely manner and to help you continue to communicate your commitment to sustainability in a legally compliant manner.