New developments in Europe make a filing strategy for registered designs and trade marks even more essential for the modern consumer business. Read on to find out more.

On 19 December 2024, the EU’s new Packaging Regulation was signed and will come into force 18 months after the date of publication, still to be announced. This repeals the old packaging directive and makes significant changes to the regime. These changes include introducing stringent requirements on sustainability, recyclability and limiting single-use plastics for products sold in the EU. However, the regulation will also provide certainty for brands as the regulation will harmonise the rules across all EU member states, which will stop brands having to contend with varying, sometimes conflicting, packaging rules in different markets.

Packaging Minimisation in the EU

This new regulation will have a large effect on many industries including fast moving consumer goods, cosmetics and fashion, but we want to draw your attention to one new requirement in particular, the requirement for packaging minimisation (Article 10). This requires packaging to be designed so as to minimise its volume and weight, and to enable recyclability.

There will therefore be a ban on “superfluous” packaging such as double walls and false bottoms, but also packaging that is not necessary for “packaging function”. Together these could limit a brand’s ability to use inventive and creative packaging to stand out in the market. For instance, a product packaging in an unusual shape that is not strictly necessary to its function could be banned.

There is a (somewhat limited) exception to this rule for packaging that is protected under EU or national design or trademark laws or applicable international agreements. This exception applies provided that packaging changes would affect “the shape of the packaging in such a way that the trademark can no longer distinguish the trademarked good from goods of another undertaking, and the design can no longer keep its new and individual characteristics”. Importantly, UK designs and trademarks will not count, and companies will need EU-based registrations to qualify for this exception.

However, the exception only applies to trademark and design rights protected before the date of entry into force of the new regulation. This means that the clock will start to tick very shortly with an 18-month window to ensure designs and trademarks are properly filed.

Key Takeaways for Brands

The key takeaways are:

• Review trade mark and design portfolios to check protection status today;
• File trade marks for any hero products and packaging to protect their shape, look and feel (multiple marks may be necessary depending on the complexity of the packaging); and
• File registered designs for new products as soon as possible.

Look out for Part 2 of this series on combating product imitations (known as ‘dupes’) in the UK, coming soon.