Ecolabels and the ecology of trade marks

Having nothing better to do, the IPKat found himself flipping the electronic pages of the Official Journal of the European Union and what should he find but the Commission Decision of 26 November 2009 on establishing the ecological criteria for the award of the Community Ecolabel for wooden floor coverings (notified under document C(2009) 9427)

Instantly hooked by the exciting storyline and vibrant prose, the Kat was delighted to discover yet another IP- or quasi-IP right, the Ecolabel Right. As he found from the Decision,

It is necessary to assign the task of contributing to setting and reviewing eco-label criteria as well as assessment and verification requirements to an appropriate body, the European Union Eco-Labelling Board (EUEB), in order to achieve an efficient and neutral implementation of the scheme ....

The laws governing the Ecolabel can be found in Regulation 1980/2000 of 17 July 2000

on a revised Community eco-label award scheme, Article 9.2 of which provides that

The eco-label may not be used, and references to the eco-label in advertising may not be made, until a label has been awarded and then only in relation to the specific product for which it has been awarded. Any false or misleading advertising or the use of any label or logo which may lead to confusion with the Community ecolabel as introduced by this Regulation is prohibited.

Article 18 deals with infringements and provides as follows:

Member States shall take appropriate legal or administrative measures in case of non-compliance with the provisions of this Regulation and communicate these measures to the Commission.

All of this set the IPKat thinking about a number of things. For example

* Does the entitlement to use the Ecolabel confer any right upon its user in respect of the subsequent use of a similar mark by a competitor?

* Might the failure of a Member State to prevent wrongful use of the logo entitle rightful users to compensation and, if so, what might be the measure by which such compensation is calculated?

* Is similarity to the Ecolabel a basis upon which OHIM or a national office might refuse to allow registration of a trade mark [Merpel says, that's an easy one to answer, isn't it?] or as a Community design [Merpel hesitates here ...]

* Aren't there a number of other marks out there which are already quite similar? If so, what might their fate be?

Proposal for a revised Ecolabel Regulation here

Download your Ecolabel in different formats here