The PPWR will introduce drastic changes to the packaging in which products can be sold across industry sectors and may affect your ability to continue to use key elements of your trade dress. Design elements of the trade dress which are not necessary to ensure the functions of product packaging will principally no longer be allowed. However, the PPWR provides an exemption for designs and trademarks that are protected in the EU on the date the Regulation enters into force. Trade dress owners are therefore advised to immediately consider the implications of the new legislation and whether trade mark or design protection should be sought to preserve rights in key trade dress elements.

The Regulation in more detail

The new PPWR will replace the current EU legislation on packaging waste, namely the Packaging and Packaging Waste Directive (Directive 94/62/EC) as well as all the corresponding national laws. The change from a directive to a regulation means that all 27 EU Member States will be directly bound by the legislation and it will have direct effect throughout the EU.

The Regulation introduces several new requirements for product packaging. Importantly, if packaging does not meet these requirements such packaging (and hence products in the packaging) cannot be placed on the EU market. The Regulation is wide-ranging and sets out rules on materials which can be used for packaging (including prohibiting the use of substances of concern and mandating the recyclability of packaging), the size of packaging and mandating packaging minimisation, labelling rules (including mandatory information on material composition), prohibition of certain packaging formats and management of packaging and packaging waste by setting targets for waste reduction and on deposit and return systems for single-use plastic beverage bottles and metal beverage containers.

From a brand owner’s perspective, Article 10 is arguably the most important provision.

Article 10 requires the weight and volume of packaging to be minimised to its key function, which is essentially to ensure product protection from the point of sale until the end use. The legislation sets out the performance criteria which the product packaging must achieve in Annex IV. Packaging which is aimed only at increasing the perceived volume of the product, including double walls, false bottoms, and unnecessary layers, is explicitly prohibited. Manufacturers and importers will be required to describe why further reduction of the packaging weight or volume cannot be achieved without endangering the packaging functionality.

What this means in practice is that any element of the product’s packaging which isn’t necessary to fulfil any of the performance criteria but increases the size and/or volume of the packaging will be forbidden.

However, the PPWR creates an exemption to packaging minimisation where (1) the packaging is protected by a Community Design or national or international design right having effect in any EU Member State or where (2) the packaging shape is protected by an EUTM or national or international trade mark right having effect in any EU Member State. The exemption however only applies to designs and trademarks which were protected before the entry into force of the Regulation, which is expected to be in Autumn 2024.

Other notable provisions which may directly affect the ability to use key branding and trade dress elements in the EU concern restrictions on packaging materials and formats, namely:

• Article 5 lays down requirements for substances which can be used in packaging and sets prohibitions on use of substances of concern, including PFAS.
• Article 6 requires packaging to be recyclable and sets out what requirements will need to be met in a two-step approach. As of 1 January 2030, packaging will have to comply with the design for recycling criteria and, as of 1 January 2035 the requirements will be further adjusted to ensure that recyclable packaging is also sufficiently and effectively collected, sorted and recycled.
• Article 7 requires that, from 1 January 2030, any plastic part of packaging must contain a minimum percentage of recycled content recovered from post-consumer plastic waste (e.g. single-use plastic drinks bottles must contain a minimum of 30% of such recycled content). The minimum percentages will increase by 1 January 2040 (for example, single-use plastic beverage bottles will have to contain at least 65% of such recycled content).
• Article 25 and Annex V ban certain packaging formats altogether as from January 2030. These would include single-use plastic packaging for fresh fruits and vegetables as well as  single-use plastic packaging for foods and beverages filled and consumed within the premises in the Hotel, Restaurant, and Café/Catering (HORECA) sector, and single-use plastic packaging for condiments, preserves, sauces, coffee creamer, sugar, and seasoning in the HORECA sector.

Implications for brand owners

The legislation introduces significant new criteria which product packaging must meet and will often mean that brand owners will have to change the packaging material and format for their products. For example the changes mandated to packaging material may affect the way colours can be displayed on packaging as well as its texture and shine. In addition the legislation explicitly creates exceptions on packaging minimisation where such packaging minimisation would put at risk existing protected designs and trademarks. All of this  may therefore have significant implications on the look and feel of brand owners’ products and may require brand owners to reconsider key elements of their trade dress.

Brand owners are advised to immediately consider the implications of the PPWR for their branding strategy. This may entail planned changes to strategies for branding including reviewing existing design and trade mark portfolios and considering whether new protection is required to ensure that equity in key branding elements is preserved while ensuring compliance with the Regulation.

When does the regulation come into force?

The European Parliament adopted the provisionally agreed PPWR text on 24 April 2024. You can find the final text of the Regulation here. Following a so-called “legal-linguistic” review, the PPWR will need to be formally adopted by the Council, which is expected to take place in the Autumn of 2024. The PPWR will enter into force 20 days after publication in the Official Journal of the EU and will apply 18 months from the date of entry into force.

Where can I get more information?

If you want advice on possible branding strategies to enable compliance with the Regulation please contact Imogen Fowler, Morten Petersenn, Iza Junkar or Nils Graber. If you want more information on the scope and application of this Regulation and specific advice on how products must be packaged please contact Christiane Alpers, Jacqueline Mailly, or Anastasia Vernikou. You can find more information about the specific provisions of the PPWR on Engage in the Related Materials section.

Please note that the PPWR is not the only new legislation dealing with packaging and packaging waste. In the UK, where the PPWR will not apply, the packaging waste regime is also undergoing significant changes and new legislation (being the Producer Responsibility Obligations (Packaging and Packaging Waste) Regulations 2024) is expected to be introduced soon (perhaps even before the end of 2024). If you require further information on the UK rules on packaging waste please contact Richard Welfare or Alice Russen

Authored by Iza Junkar, Imogen Fowler, Morten Petersenn, and Nils Graber.