The EU’s new Packaging Regulation introduces stricter guidelines on sustainability, requiring recyclable packaging and limiting single-use plastics (Articles 5 and 6). This shift is relevant across a wide variety of industries, particularly those with high-volume or non-recyclable packaging, including food, cosmetics, and fashion. The regulation aligns with the broader EU sustainability goals, promotes circular economy principles and encourages companies to consider the full lifecycle of their packaging materials (Article 7).
The IP exception for registered designs and trade marks
The IP exception (Article 10(2)) recognises that distinctive packaging such as iconic shapes or branding (e.g. for a luxury perfume bottle) can play a significant role in a company’s IP strategy. Products that are protected by a trade mark or registered design on the date that the Packaging Regulation enters into force may be exempt from some packaging requirements if this IP use is central to the product’s commercial identity or function (Article 10). For many businesses these IP-protected elements enable brand recognition and constitute a competitive advantage. Therefore their continued use is important to the ongoing commercial success of the brand.
The IP exception is not a carte blanche to retain unsustainable packaging. Companies invoking this exception must demonstrate that the packaging design is integral to the brand identity and cannot be easily modified without impacting the IP’s value or function. This approach requires a balance between preserving brand equity and meeting sustainability targets, as the exception does not permit indefinite use of non-compliant materials without justification.
How to prepare
In order to be able to rely on the IP exception, it is necessary to have a registered design or shape trade mark at the EU or EU member state level. To ensure that your packaging benefits from this IP exception:
File any registered designs as soon as possible and
Consider filing a registered shape mark in a territory such as Benelux which has a fast trade mark registration system.
This approach will help keep your options open when the new regulation comes into force.
To find out more about the issues raised in this blog contact Rosie Burbidge