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- Written by Maria Iskic
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Navigating the Challenges of Green Trademarks
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- First published 19 April 2024
As businesses increasingly integrate sustainability into their branding, «green trademarks» have become a strategic asset. However, the path to securing and maintaining these trademarks is fraught with some challenges. Here are some hurdles companies will need to navigate:
Avoiding Greenwashing - One of the primary challenges is the accusation of greenwashing. Companies must ensure their green claims are not only substantiated but also truly reflect environmental benefits. Misleading claims can damage brand reputation and lead to legal repercussions.
Complex Regulatory Landscape - The legal environment for green trademarks is complex and varies significantly between jurisdictions. Companies must navigate these varying regulations to ensure their trademarks are valid and enforceable both locally and internationally.
Consumer Skepticism - With a rise in environmental awareness, consumers are becoming more skeptical of green claims. Businesses need to build a strong, transparent case for their sustainability initiatives to foster trust and loyalty among consumers.
Innovation and Adaptation - The rapid pace of technological advancements and changing environmental standards can make it challenging for trademarks to remain relevant and reflective of current green practices. Continuous innovation and adaptation are crucial.
Cost Implications - Developing and maintaining green trademarks can involve significant costs, from R&D to marketing and legal fees. Smaller enterprises may find these costs particularly prohibitive.
Despite these challenges, the potential benefits of green trademarks are substantial, including brand differentiation, enhanced consumer trust, and alignment with global sustainability goals. Ideally, businesses should integrate these advantages into a comprehensive intellectual property strategy that protects both the technical innovations and the consumer-facing aspects of a sustainable product, positioning them at the forefront of sustainable development.
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- Written by Matthias Salcher
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The EU Directive 2019/904 aims to prevent and reduce the impact of certain plastic products on the environment as well as to promote the transition to a circular economy with innovative and sustainable business models, products and materials. (see Article 1 of EU 2019/904). Article 6 of this directive specifies that single-use plastic products that have caps and lids made of plastic may be placed on the market only if the caps and lids remain attached to the containers during the products’ intended use stage.
Various beverage manufacturers have reacted to this and redesigned the caps of their plastic bottles so that they remain attached to the bottle as required. The beverage company ACQUA MINERALE SAN BENEDETTO SPA has developed a particularly ingenious design, which is it protected at least by means of an EU design (application number 008965917).
The first image below shows the product and the second image shows a figure from the design application.
Directives and laws can and often are the starting point of innovative technological developments, which are to be protected by corresponding property rights.
In any case, this directive has led, in my opinion, not only to a reduction in the environmental impact of plastic products, but also to the development of a variety of beautifully designed new bottle caps.
The bottle cap shown below is a particularly beautiful piece of engineering.
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- Written by Katerina Livi
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Everyday IP – acquired distinctiveness of chocolate brands in Switzerland
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- First published 28 March 2024
With Easter approaching, I recently found myself strolling though the supermarket with my kids and overheard them discussing which chocolate bunnies and/or chocolate eggs they would love to find in their baskets this year.
While also comparing the options myself, I quickly realized that there was no other company besides Lindt that offered chocolate bunnies in gold-coloured foil and that Ferrero`s products dominated the chocolate aisle of our supermarket.
While Lindt is the owner of the following three 3D marks, which represent the packaging of chocolate bunnies, Ferrero inter alia owns the following kinder (fig.) trademark:
Now you are probably wondering how Ferrero managed to secure the trademark kinder (fig.), despite its elements not being inherent distinctive, particularly the only verbal element being purely descriptive for the target consumers (kinder is German and means children) and how Lindt was able to register 3D trademarks representing the shape of a golden bunny / the shape of the packaging of such chocolate products.
This is where acquired disctinctiveness comes into play. Ferrero's and Lindt`s aformentioned marks – which are not inherently distinctive – were registered as trademarks because their owners successfully demonstrated that these signs have acquired disctinctiveness through use in Switzerland. But what is acquired distinctintivness and how can it be used to obtain trademark protection in Switzerland?
According to Art. 2 lit. a of the Swiss Trade Mark Protection Act (TmPA), signs that belong to the public domain are excluded from trademark protection, except where they have become established as a trademark through use for the goods or services for which they are being claimed. A sign has become established in trade if it is understood by a significant proportion of the consumers of the goods/services as an individualizing reference to a specific company. The acquired distinctiveness of a sign can be derived from facts that allow conclusions to be drawn about the perception of a sign by the public. These include, for example, many years of significant sales made under a sign or intensive advertising efforts.
However, direct evidence through a representative demoscopic survey of the relevant public is also possible and, according to the Swiss Federal Supreme Court, the most reliable way to show the acquired disctinctiveness of a trademark through use in Switzerland.
By the way, in the end, my children`s votes neither went to the kinder (fig.) suprise eggs nor the Lindt gold bunny, but rather to the white chocolate unicorn and the football playing chocolate bunny, both of which are offered under the supermarket`s own-brand.
With that said, I wish you all an eggcellent Easter with hopefully many different types and brands of chocolate animals!
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- Written by Christian Ebner
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Does it impact your intellectual property?
Yes! It is a business decision which may strongly affect your IP
A partner is interested in our 3D bioprinter for their feasibility study. Shall we sell it or rent it out?
Answering this question does not only depend on your business model, but raises important IP issues which should be considered.
They shall only run the feasibility tests. We do not want them to develop new cell printing processes with our printer.
If the partner’s goal is to test the 3D printer’s viability for their use case to decide later whether to place an order, a rental or loan agreement allows you to clearly define both the allowed and prohibited uses.
When you rent your machine, you remain the rightful owner and you are relatively free to control which uses are allowed and which are not - provided this is defined in the rental agreement.
Thereby you may be able to prevent that your partner makes new developments in other areas and generates IP with your printer without your consent.
We are fine with our partner having the printer, but we fear that they will give it to our Swiss competitor
If the printer is sold in Switzerland or the European Economic Area, the patent right protecting the printer is exhausted for the particular unit you sold.
Thus, if it is sold to your partner, they are generally free to resell it or give it to your Swiss competitor. The patent protecting the printer will not help because you consented to the sale and it is therefore exhausted.
To avoid this, the printer can be rented or loaned to your partner and it can be specifcally stated in the rental agreement that they are not allowed to give the printer to a third party.
We patented a process for cell printing improving cell vitality by a combination of process parameters and additives. Can our partner use our process when we sell them the machine?
The situation in Switzerland is not entirely clear on this. If you sell a device that can be used with a patented process, the Swiss Patent Act implies that the buyer can then also use the protected process, because the sale of the printer can also exhaust the method patent.
By renting the printer to your partner you can avoid this, as neither of the patents will be exhausted.
This has the additional advantage that you remain the owner of the device and the right to use the process cannot be sold to a third party.
We still want to sell the printer, but can we collect license fees for the protected process?
In this case, one may try to include the condition to pay license fees for the patent protected process in the sales agreement before the actual sale.
However if the device is then sold to another party, the second buyer may be free to use the 3D printer without being obliged to continue to pay the license fees.
Deciding between selling or renting can strongly affect a company’s IP strategy and assets. It is crucial to clarify beforehand what potential consequences are and what the best solution for the present case is
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- Written by Jan Kleffmann
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Patents hinder the spreading of climatechange mitigating technologies, don’t they?
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- First published 23 February 2024
«Patents hinder the spreading of climatechange mitigating technologies, don’t they?» is a question I recently heard. Here are my thoughts on the topic.
There is a grain of truth to this, however let‘s first imagine for a moment a world in which patents do not exist.
The average inventor would try to keep as much details as possible of their inventions a secret, such that their competitors could not easily copy their technology. In order to monetize on innovations one would need to heavily rely on trade secrets. This would results in minimal sharing of technical knowledge and ultimately in slow technological advancement.
Returning to the real world with that in mind. There are (at least) three angles to the question:
Knowledge Sharing
For patents to be granted they are required to disclose the invention with enough details such that a skilled person is enabled to put the protected invention into practice. As a result, patents are great sources of technical knowledge, available to the public. In addition, inventors feel free to share details of their inventions knowing them protected by patents.
Promoting Innovation
Patents, as they can be used to stop competitors from copying the protected invention, stimulate innovation by incentivizing the inventor. However others as well are incentivized by patents to develop alternative approaches, to „innovate around“ existing patents or to use the technical teachings of a patent as a starting point for further improvements. It is therefore widely accepted, that patents foster innovation.
Technology Sharing
The owner of a patent, which protects certain aspects of a technology, is not obliged to grant anyone a license to the patent. It is therefore fair to say that patents can hinder - based on the decision of their owners - others to practice the patented invention. In practice however, there is rarely a single (protected) way to solve a technical problem and the first two points above kick in.
In Summary, I believe the pros in favor of patents outweigh the cons.
Regarding greentech specifically, there are initiatives to further increase the sharing of (patented) technology, such as WIPO GREEN: https://wipogreen.wipo.int/wipogreen-database/database
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