Swedish activist Greta Thunberg has applied for an EU trademark for her name. It is common for celebrities to trademark their name. For example, Greta Garbo, Ed Sheeran and Lionel Messi are all registered trademarks in the EU.
EU trademark GRETA THUNBERG covers, among other services, advertising, business management, business administration, financial, and insurance services. The application is in the name of Thunberg’s foundation. The foundation has also applied for trademarks “FRIDAYS FOR FUTURE” and “SKOLSTREJK FÖR KLIMATET” (Swedish for “School Strike for Climate”).
Thunberg explained the reasons for the application on Instagram as follows:
“Impostors, trademarks, commercial interests, royalties, and foundation… My name [is] constantly being used for commercial purposes without any consent whatsoever… It happens for instance in marketing, selling of products and people collecting money in my and the movement’s name… I assure you, I and the other school strikers have absolutely no interests in trademarks… Fridays For Future is a global movement founded by me…[it] can – and must – not be used for individual or commercial purposes.”
Thunberg stated that the trademarks were based not so much on pursuing and protecting her own commercial interests and activity, but on ensuring that others could not use her name.
Has the application been made in bad faith?
Thunberg’s decision to seek to register these trademarks is understandable, although not entirely unproblematic. According to the EU trademark law, a trademark can be declared invalid if it has been applied for “in bad faith”. Bad faith is a broad concept and its threshold for application has been constantly lowered by the European Union’s Court of Justice.
In January 2020 the EU’s highest court ruled that a trademark application could be made in bad faith and therefore liable to be invalidated when the applicant has no commercial intention to use the mark for the goods and services covered by the application, and the purpose of registration is to prevent others from using the mark.
The concept of bad faith requires dishonesty or inconsistency with honest business practices. In a broader assessment, Thunberg’s intent behind the trademark application is, of course, understandable and justifiable, but the EU courts have nevertheless limited the evaluation of intention behind the application to commercial activities. Trademarks are, after all, commercial identifiers.
The question is whether there is an honest commercial intention behind the application, other than merely preventing others from trading with that name. Non-profit organisations, in general, can clearly have such an intention and the EU courts have previously ruled that even though charities and non-profit organisations do not necessarily offer goods and services for money and profit, their trademark can be offered commercially with the intention of creating or maintaining an outlet for those goods or services.
While profit motive is irrelevant, the trademark should be still used in the commercial sphere for goods and services. If this intention is lacking, the registration may have been applied in bad faith and in contrary to EU law. In Thunberg’s case, such an intention could be for example that the organisation offers speaking engagements and consultations in the field of environmental matters. However, mere organising of grassroots activity and demonstrations is not commercial in nature.
If there is no commercial intent behind the application (i.e. intent to use the trademarks for goods and services), the application may be made in bad faith within the meaning of trademark law. If so, that would mean that the mark was registered in violation of the law and could be declared invalid.
Thunberg has stated in his Instagram update that the name should not be used for “personal or commercial purposes”. If someone wants to use a registered trademark for purely personal purposes, trademark law cannot be used to prevent it.
If Greta Thunberg does not offer any goods or services and does not intend to do so, a trademark may not be ultimately the most appropriate form of protection for her. Unauthorized use of the name or image of a prominent person in marketing is in most countries considered an unfair business practice. There is no question that Thunberg has a legitimate interest in preventing others from exploiting her name and reputation, whatever the legal basis.
Was the trademark application unnecessary?
As long as no one tests the validity of the Thunberg trademark, it will be an effective way of interfering with the unauthorized commercial exploitation of his name. In practice, therefore, a trademark may well have the effect for which registration was originally sought.
Another handicap with trademarks is that they relate to specific goods and services. For example, Greta Thunberg’s trademarks relate to various services, such as advertising, finance, and education. Other companies or individuals might well try to register her name with respect to other goods and services. There is already another EU trademark application for a logo Greta Thunberg. The applicant’ details are not yet public. The application covers many different products, such as essential oils and aromatic extracts, toys, and artificial Christmas trees. The details of the application can be found here.
While Thunberg’s own trademark cannot be used to oppose the applied logo mark (the goods and services are too different), Thunberg could somewhat ironically claim that the logo mark has been applied in bad faith. She might also have additional grounds for seeking the invalidation of the logo mark (if it is registered).
More information on the Thunberg Trademark Application can be found here.
