The European Union’s Packaging and Packaging Waste Regulation (PPWR) was published on 22 January 2025 in the EU official journal. It will enter into force on 9 February 2025 and apply with immediate effect in the EU Member States from 12 August 2026.
The PPWR applies to all packaging placed on the EU market and to all packaging waste, regardless of the type of packaging or the material used[1]. It establishes requirements for the packaging’s entire life cycle imposing obligations on manufacturers and importers of products in the EU to reduce unnecessary packaging and packaging waste and promote reusable and refillable packaging and recycling[2]. An overview of the key changes can be accessed on our cross-practice ESG and Sustainability blog here.
Given the rather broad definition of “packaging” (which includes items such as flower and plant pots for selling and transporting, clothes hangers sold with a clothing item and mascara brushes forming part of the container structure[3]), there is hardly any consumer products manufacturer or importer not affected by it. In this blog, we are focusing on the most important provisions of the PPWR IP owners need to be aware of.
Packaging minimization requirements
By 1 January 2030, the manufacturer or importer of a product must ensure that any packaging placed on the EU market is designed so that its weight and volume is reduced to the minimum necessary to serve its purpose, considering the shape and material from which the packaging is made[4]. This explicitly refers to elements that increase the perceived volume of the product including double walls, false bottoms and unnecessary layers[5].
Often, however, these design elements are distinctive and sometimes even iconic brand assets. It is thus important to know that the PPWR provides an exception from the minimization requirement for packaging designs protected by design or trademark registrations at the time the PPWR enters into force. Notably, the exception only applies if the required minimization would affect the design in a way that it alters its novelty or individual character or the trademark in a way that it would lose its distinctive character[6]. Compliance with these requirements needs to be set out in technical documentations[7].
It remains to be seen how this exception will be interpreted. In particular, it is not yet clear whether “protected” means that the design or trademark must be registered at the time of the PPWR’s entry into force, i.e. on 9 February 2025, or whether a corresponding filing/priority date is sufficient for the exception to apply. In any event, now is the very last call to file trademark and/or design applications. Obtaining an EU design is straightforward and simple with the European Intellectual Property Office issuing the certificate within 1-2 days.
IP owners that already own trademark or design registrations for decisive packaging or elements thereof may want to verify their design and trademark renewal lists extra-carefully to avoid giving up design or trademark registrations covered by the exception.
Other potential conflicts with IP rights
Apart from the minimization requirement, the PPWR contains further provisions that may have an impact on IP rights. This applies, for example, on rules affecting the material or composition of packaging as well as labelling, marking and information requirements that may limit the space on the packaging to use word marks, logos or other design elements or otherwise impair the branding’s overall impression.
IP owners are also well-advised to closely monitor whether additional and/or stricter requirements for more sustainable packaging and its minimization enter info force prior to 1 January 2030. The PPWR, for example, stipulates that the EU Commission shall request the European standardization organizations to prepare or update, as appropriate, harmonized standards laying down the methodology for the calculation and measurement of compliance with the requirements concerning packaging minimization. For most common packaging types and formats, such standards should specify maximum adequate weight and volume limits, and, where appropriate, wall thickness and maximum empty space[8].
Incentives for innovative packaging
The EU legislator, on the other hand, encourages manufacturers to experiment with innovative packaging design, which may as such become a distinguishing feature compared to competitor products. To stimulate innovation in packaging, packaging which presents innovative features resulting in significant improvement in the core function of packaging, such as the containment, protection, handling, or delivery of products, and that has demonstrable environmental benefits is given additional time to meet the recycling requirements set out in the PPWR[9]. The innovative features should be justified, especially as regards the use of new materials, and the planned establishment of a recycling path should be explained in the technical documentation accompanying the packaging[10]. We have noticed that once companies have started playing with these new requirements, creativity has sky rocked.
Takeaways
In an increasingly environmentally conscious society, innovative packaging turns into a major brand asset. We assist brand owners in monitoring developments in packaging law and their interfaces with IP rights closely, not only to make sure to be compliant but ahead of the game. With EU packaging legislation moving fast, sustainability considerations should form an integral part of any company’s IP strategy.
[1] Article 2(1) PPWR.
[2] Article 1(1) PPWR.
[3] Annex I A.1 and B.1 PPWR.
[4] Article 10(1) PPWR.
[5] Article 10(2) PPWR.
[6] Article 10(2) lit. a) PPWR.
[7] Article 10(4) PPWR.
[8] Article 10(3) PPWR.
[9] Article 6(10) PPWR.
[10] PPWR, Recital 33.