The European Union is now close to finalising new legislation on packaging and packaging waste, placing an obligation on manufacturers and importers of products in the EU to minimise the volume and weight of product packaging, and to reduce packaging waste. In the interests of environmental sustainability, any product packaging that does not comply with these requirements is prohibited. The measures aim to increase the use of recycled content in packaging, especially in plastic packaging where the uptake of recycled content is very low, as well as higher recycling rates for all packaging.
The requirements apply both to the composition and volume of the product packaging. By 1 January 2030, the manufacturer or importer must ensure that any packaging placed on the market is designed so that its weight and volume is reduced to the minimum necessary to serve its purpose, taking into account the shape and material of the packaging, and so as to allow for the packaging to be re-used as many times as possible or recycled.
Consequences regarding design requirements
Wherever packaging is required, that packaging should be designed, manufactured and commercialised in such a way as to allow for its re-use or high-quality recycling, and to minimise its impact on the environment during its entire life-cycle and the life cycle of the products for which it was designed.
This opens up the potential for manufacturers to be innovative in their packaging design, and to distinguish their products through the use of such innovative packaging. In turn, any such innovative packaging designs should be properly protected using the appropriate form of intellectual property protection, whether this is via patents protecting an inventive form of packaging or an inventive packaging process, trade marks protecting the innovate get-up of the product, or registered designs protecting the visual appearance of novel product packaging.
Transitional period: innovative packaging (3 years)
In order to stimulate innovation in this area, packaging which presents innovative features resulting in significant improvement in the core function of the packaging and has demonstrable environmental benefits, will be given an additional period of three years in which to comply with the recyclability requirements.
The innovative features and the planned establishment of a recycling path must however be explained in the technical documentation accompanying the packaging, and the Commission and the competent authority must be informed before placing this “innovative packaging” on the market.
IP exception
It is also important to note that the new Regulation will not apply to certain packaging designs (including single use packaging and packaging designed to increase the perceived volume of the product, such as double walls, false bottoms, and unnecessary layers) provided that the packaging design is protected:
- by a European Community design,
- as a three dimensional EU trade mark, or
- as a protected geographical indication.
However, this exemption applies only to designs and trade marks protected prior to the date of entry into force of the Regulation, which we expect to be in early 2025.
Furthermore, the exception will only apply if application of the Regulation to that product packaging will alter the novelty or individual character of the registered design, or affect the trade mark such that it is no longer capable of distinguishing the goods in question from those of other businesses.
Practical recommendations
For businesses that have developed valuable product packaging that they wish to continue to use moving forward, and which might fall foul of the new Regulation, we would recommend investigating whether registered design or trade mark protection can be secured for such packaging before the Regulation comes into force. The packaging might then fall within the IP exception to the Regulation.
Any new packaging designs that have been made available to the public within the last 12 months might still qualify for registered design protection by virtue of the so-called “grace period” that enables new designs to be tested on the market before registered design protection is secured. Equally, any distinctive packaging may be suitable for registered trade mark protection, although registration of a trade mark is likely to take longer than a registered design – EU registered designs generally proceed to registration within a matter of weeks from filing, whereas EU trade marks will generally take 5 – 6 months from filing to reach registration.
On the other hand, the new Regulation does provide an opportunity for businesses to consider new and innovative product packaging designs that may themselves warrant IP protection and distinguish their products from competitors. As such, we would encourage manufacturers to consider whether those new designs may benefit from patent, registered design or trade mark protection, so as to provide a further competitive advantage in the market.
It remains to be seen how the Regulation will impact businesses in the EU and elsewhere, how businesses will adapt their IP strategies to take the Regulation into account, and whether other countries will adopt similar legislation in the interests of environmental sustainability.