Placing a green leaf on packaging, adding the phrase “eco-designed” after a product name, or printing a flattering founding date on a label has long been a matter of marketing discretion alone. These choices now affect the legal validity of the trademark. The concept of a misleading trademark is by no means new—trademark law has long penalized marks that promise consumers something the product does not deliver—but the year 2026 will significantly reshape its contours.
In just a few months, the Court of Justice of the European Union has tightened its standards for evaluating trademarks that capitalize on a fictitious historical heritage, while the “Empowering Consumers for the Green Transition” directive—known as EmpCo—which takes effect on September 27, 2026, will classify most environmental claims as prohibited practices.
For any company that is preparing to register a trademark—or that already uses one—now is the time to take stock.
What is a misleading trademark?
A trademark is considered misleading (or “deceptive”) when the sign that constitutes it is likely to mislead the target public regarding a characteristic of the product or service it designates. The Intellectual Property Code designates this as an absolute ground for invalidity (Article L.711-2, 8°): such a trademark cannot be validly registered if it misleads the public, in particular, regarding the nature, quality, or geographical origin of the goods or services it covers. In this regard, it does not matter whether the sign is verbal, semi-figurative, or even a sound mark: what is penalized is the discrepancy between the impression the trademark creates in the consumer’s mind and the actual characteristics of the product.
One point is worth emphasizing, as it often surprises applicants: the likelihood of deception is assessed intrinsically, based on the mark itself and the goods covered by its description, regardless of how it is actually used. A trademark may thus be invalidated not because it has actually misled anyone, but because it carries an inherent risk of misleading consumers. It is this preventive approach that explains the strictness of the case law.
Current Situation: Signs to Be Handled with Caution
Certain issues account for the bulk of the litigation. First and foremost are those related to identity and origin.
- One surname, in particular, cannot be freely registered as a trademark: the Froment-Meurice family successfully had a trademark bearing that name—registered by a third party—declared invalid, as the surname’s reputation in the jewelry industry had endured in the public consciousness long after the dynasty had ceased operations.
- Geographical indications are subject to the same requirement of truthfulness: the trademark “La pizza de Saint-Tropez” was deemed misleading for pizzas made elsewhere, even though the town has no particular reputation in this regard—it is sufficient that the mark falsely suggests a place of origin.
Next come the symbols that explore the themes of time and heritage.
- A date is only valid if it actually corresponds to the proven history of a craft. The “Fauré Le Page Paris 1717” brand learned this the hard way: the company that operated under that name had not taken over the business of the house founded in the 18th century, but had merely purchased its name.
- In response to a request for a preliminary ruling from the Court of Cassation, the Court of Justice of the European Union affirmed this approach in a highly anticipated ruling (CJEU, March 26, 2026, Case C-412/24, Fauré Le Page v. Goyard St-Honoré). While the date of a company’s founding does not, in and of itself, constitute a characteristic of the product, the Court acknowledges that, in the luxury sector, a long-standing year evokes long-established expertise that contributes to the image of prestige—and thus to the perceived quality of the item; when such expertise does not actually exist, the trademark becomes misleading regarding that quality. The scope of the decision extends beyond the mere issue of dates: any claim of longevity—“since…,” “founded in…,” or a historical narrative incorporated into the name or slogan—is subject to the same requirement of consistency between the claim and economic reality.
A third category includes signs that promise a certain quality or distinction.
- Flattering descriptions are permitted only if they are accurate: the trademark “NCF Nouvelle Couture Française” was invalidated for ready-to-wear items because it implied that the clothing was haute couture.
- The terminology used in the award also calls for the same level of caution: since it was not actually the most-listened-to station during the relevant time slot, Skyrock had its “Number One in the Morning” claim revoked, as it was deemed misleading regarding a material aspect of the service.
Finally, there is the category that will be the focus of attention in 2026: environmental claims. The Court of Cassation had already ruled that the “Ovibio” trademark for fertilizers was invalid, as the prefix “bio” misled consumers even though the products did not fall within the scope of the European regulation on organic production. It is precisely this area that the EmpCo Directive is set to disrupt.
2026: The Environmental Turning Point—The EmpCo Directive Takes Center Stage
Directive (EU) 2024/825, known as “Empowering Consumers for the Green Transition,” adopted on February 28, 2024, and applicable in all Member States as of September 27, 2026, adds a crucial building block to the framework. It defines an environmental claim in the broadest possible sense: any non-mandatory message or statement, in any form whatsoever (text, image, symbol, label, as well as a brand name or product name), that asserts or suggests that a product has a positive or neutral impact on the environment, that it is less harmful than its competitors, or that its environmental footprint has improved over time.
The mechanism adopted is formidable. The directive places these practices on the “blacklist” of unfair commercial practices, thereby deeming them misleading by nature: it will no longer be necessary to demonstrate that the consumer was actually influenced in order to establish the violation. In practical terms, a generic environmental claim—such as “eco-friendly,” “green,” or “environmentally friendly”—may only be used if the company can demonstrate excellent, recognized environmental performance that is relevant to the claim. Claims of “carbon neutrality” based solely on emissions offsetting are targeted, as are sustainability labels that are not based on a certification system or issued by a public authority. If your trademark or trade name is associated with a label that you have designed yourself, and whose award criteria cannot be verified by an independent third party, that label falls under the ban—and your mark along with it.
France’s delay in transposing the legislation should not mislead anyone. The so-called “DDADUE” bill, which is intended to amend the Consumer Code and the Environmental Code, was adopted at first reading by the Senate but is still awaiting consideration by the National Assembly; Moreover, on May 28, 2026, the European Commission issued a formal notice to France—along with nineteen other Member States—for failing to notify it of the expected transposition measures. After September 27, 2026, however, this delay will no longer provide any protection: the directive will take direct effect, meaning that the absence of French legislation can no longer be invoked to continue using a claim prohibited by EmpCo. Adding a drop of water or a leaf to a logo, or supplementing a word mark with the phrase “eco-friendly,” will no longer be a trivial matter: any element—whether graphic or textual—that suggests an environmental benefit must be supported by objective evidence of sustainability.
Case law did not wait for EmpCo
The courts, moreover, did not wait for the directive to take effect before penalizing these practices. On June 23, 2026 (Case No. RG 21/13092), the Paris Judicial Court ruled against the producer of Volvic water for the unjustified use of the terms “carbon neutral” and “100% recycled” on its bottles, deeming these to be deceptive commercial practices (a judgment ordering compensation for the plaintiff consumer association and a publication requirement, which is currently under appeal). A few weeks earlier, the Lille Judicial Court, ruling in summary proceedings on March 31, 2026 (Case No. 25/01103), had gone so far as to order the recall of products whose packaging bore unsubstantiated environmental claims—not at the request of a consumer, but of a competitor: proof that legal action based on deceptive practices can also become a weapon between businesses.
These decisions illustrate the intersection between two long-distinct bodies of law. The invalidity of a misleading trademark falls under trademark law and is assessed on its own merits, based on the sign and its wording; deceptive commercial practices fall under consumer law and penalize the message actually communicated to the public. A trademark that makes an unfounded environmental claim can therefore be challenged on both fronts at the same time.
What are the risks for a misleading brand?
The first obstacle arises as early as the examination stage: the INPI may directly refuse to register a deceptive trademark. But the risk does not disappear once the trademark is registered. Since the 2019 reform of trademark law, an action for invalidation based on an absolute ground (and deception is one such ground) is not subject to a statute of limitations (Article L.716-2-6 of the Intellectual Property Code): a competitor, a consumer association, or any interested party may petition the INPI for its cancellation at any time, regardless of how long ago the application was filed. Moreover, the cancellation takes effect retroactively: the trademark is deemed never to have existed, and with it vanish the investments built around the mark, such as licenses granted to third parties.
Added to this sword of Damocles is the risk of revocation, which applies to trademarks that have become misleading after their registration. A change in the quality or origin of the product may be enough to trigger it, but so can a simple shift in public expectations: a term that was perfectly innocuous ten years ago may, in a transformed societal context, take on an entirely different connotation.
What to Check Before Filing
Trademark law has always penalized misleading signs; what 2026 changes is the scope of what is considered misleading in the environmental context, and the increased ease with which such practices can be prosecuted, without the need to demonstrate a change in consumer economic behavior. For a trademark applicant, the implication is clear: the choice of a mark with an environmental dimension must now be evaluated not only under trademark law but also in light of the new requirements of EmpCo. This dual assessment applies both to the mark itself and to the descriptions of the goods and services associated with it.
Are you planning to file a trademark application? Ally Avocats will guide you through every step of the process—from designing the mark to registering it, including selecting the appropriate classifications for goods and services. Contact us to ensure your application is filed successfully.
This article is provided for informational purposes only and does not constitute personalized legal advice. For any specific situation, consult an attorney who specializes in intellectual property law.