The countries and sectors leading the ‘green’ trademark race

As world leaders gather for the 26th UN climate change conference, COP26, all eyes are on Glasgow.

From an intellectual property perspective, all the talk of using green technology and increased sustainability appears, on the face of it, to be beginning to bear fruit.

According to an EUIPO study published last month that analysed 25 years of EU trademark (EUTM) filing data, ‘green’-related applications have increased by more than 900% since 1996.

In fact, the proportion of such EUTMs — when taken as a percentage of total applications filed — has also increased. Of 145,000 EUTMs filed in 2020, 16,000 (11%) were considered ‘green’. In 1996, those types of applications comprised just 4% of the total (1,588 out of 38,000).

Additional data analysing the five year period between 2015 and 2020 also reveals that countries outside the EU have been busier filing green applications than their EU counterparts, with China and South Korea leading the way.

“Typically, in contrast to a patent, a trademark application is a sign of something being brought to the marketplace and an indication of current market and economic trends,” said one source, adding that the increased figures show company proactivity in this regard.

The EUIPO adopted machine learning to search more than 65 million terms across two million applications to identify those that contained one or more ‘green’ terms.

Rather than analysing the proposed trademark name itself, the study focused on the use of terms that fall under each class of the Nice Classification system.

In total, 900 terms were flagged as green; those terms were then split into 35 categories, which were then further organised into nine umbrella groups, says Nathan Wajsman, chief economist at the EUIPO, who presented the findings in a webinar last month.

A green EUTM application is defined as containing at least one green term. Because of this, applications with a very large number of terms (some had up to 27,000) were excluded to avoid “spurious identification” of green EUTMs, Wajsman said.

Only EUTMs with fewer than 200 terms were considered, representing 97% of the total number of filings.

However, as Wajsman explained, there are some caveats.

Some terms that would usually be associated with green-related initiatives were discounted if they appeared in certain classes.

For example, ‘carbon monitoring’ is considered a green term unless it falls under class 10 (medical instruments). In this case, the EUTM would probably cover measuring of carbon dioxide levels in patients’ blood.

Further, while nuclear power could be considered a sustainable energy source, related EUTMs were also discounted because of the potential environmental concerns, Wajsman added.

Richard May, partner at Osborne Clarke in the UK, noted that the true number of green EUTMs is likely to be higher because of the report’s specific focus on directly relevant terms.

“It’s likely that businesses, particularly tech start-ups, are also protecting green trademarks with broad terms like ‘computer software’,” he added.

A source at German car maker VW said it is focused on creating valuable green products but that this is not always specified in EUTM filings.

“Sometimes our applications do not reflect the green value of the product or service directly, since we apply for more generic terms like ‘automobile’ regardless of the green technology in the automobile,” the source said.

As well as overall filings since 1996, the report considered trends from 2015 to 2020 and which sectors have been the most active in this period.

Energy conservation (43% of all green applications), pollution control (18%), and energy production and transportation (both 10%) were among the top three groups.

Within energy conservation, EUTMs pertaining to electricity storage were the most frequently cited, comprising 38% of the total in this sector. The category was dominated by China-based applicants, who filed around 10,000 EUTMs, compared to nearly 4,000 from Germany.

Filings also increased in the transportation sector, again with those from outside the EU outstripping those from within the bloc. For example, there were 1,918 applications citing electric engines and 3,065 citing general transport.

China and Germany were among the top filers in most transportation categories.

May at Osborne Clarke noted that electricity storage can also be consistent with other areas such as battery technology, and that the number of filings here is also possibly linked to the uptake in electric vehicles, where lithium-ion batteries continue to dominate.

The source at VW confirmed this, saying: “Our EUTM applications often cover goods such as electric batteries for vehicles, solar batteries, fuel cells and their parts.”

Another source at a German automotive company says it has been “pressing ahead with its transformation” into digital and electric technology, and that the last few years have been dominated by a focus on electric driving and future technologies.

However, any uptick in electric vehicle-related EUTMs may become more apparent in the coming years. The source notes that the company plans to invest around €73 billion ($84 billion) on electric mobility and hybridisation over the next five years.

Within energy production, applications are dominated by terms related to solar energy such as ‘photovoltaic’, ‘solar collector’ and ‘solar battery’, the report notes.

May at Osborne Clarke said this is consistent with general patenting trends, where solar is leading the way with wind technologies the next most common.

The upward trajectory of green-focused EUTM filings from outside the EU is a notable trend outlined in the report.

In 2020, 10% of all EU-based filings were for green technologies, while from outside the EU the figure was 14%.

China and South Korea were among the countries that filed the highest percentage of green-related applications when taken as a proportion of their overall EUTM filings.

In total, 16,356 of the 72,422 applications emanating from China were green (23%). South Korea-based applicants applied for much fewer EUTMs (6,926). However, 25% of those were green.

UK-based applicants applied for 55,391 EUTMs in this time frame, with 8% considered green.

Slovenia (13%), Finland (12%) and Germany (12%) were the top three applicants in the EU.

Amid an increased political and societal focus on sustainability and the environment, many companies are keen to show their credentials.

Osborne Clarke’s May said: “Authentic green trademarks allow brands to engage directly with consumers and demonstrate their sustainable values.”

However, he noted that there has been growing criticism of so-called "greenwashing", whereby companies mislead consumers about their green credentials through false branding or advertising.

“Trademarks themselves can be misleading and marks registered at the EUIPO can be invalidated for being misleading, for example if the products being marketed under a mark containing 'eco' or 'green' were not actually sustainable products.”

He added: “The increased ‘green’ trend in EUTMs is positive on the face of it, [but] we should be careful about taking these trends at face value. It’s almost certain a fair few are probably bandwagon jumpers.”

Hopefully the increased interest in green solutions is not merely a case of jumping on the bandwagon. And hopefully we can also say the same about the politicians in Glasgow.