The paper, by legal scholar Vera N. Sevastianova, examines how the EU Intellectual Property Office applies anti-tarnishment protections to reputed marks such as L'Oréal, Puma, and Sky. Tarnishment, in EU law, is supposed to address detriment to a brand's repute when a later sign creates negative associations. In practice, the study finds, examiners and boards frequently assume that certain products are reputationally dirty by default and therefore unfit to live near a celebrated mark. The reasoning often leans on familiar Court of Justice touchstones - L'Oréal v. Bellure on the "power of attraction" of a mark and Intel on the viewpoint of the average consumer - but then slides into unsupported assertions about what offends that consumer.
The dataset is contemporary and broad: 185 EUIPO documents covering 176 unique matters since the 2016 reforms. In forty cases the office found tarnishment and that result held when appealed; in eleven, tarnishment was explicitly rejected and that too held on appeal. Crucially, thirty-six of the forty wins rested on the nature of the goods themselves rather than the sign - product-based tarnishment in the study's terms. Tobacco showed up nine times; sex products six; cleaning substances six; herbicides five. Only four cases turned on the sign alone - words like "poop," "bad," "LSD," and "gun."
Sevastianova describes a recurring logic she sees in the decisions. First the office accepts the brand owner's portrayal of its "image" - purity for Spa water, health for Nivea, sporty dynamism for Sky. Next it declares that the later applicant's goods would cast a shadow over that image. Finally it explains the harm with what amounts to common sense: cleaning chemicals are unhealthy, sex products are inappropriate, tobacco is universally negative. What rarely appears is evidence that the association would change consumer behavior or erode brand value in the market. The finding is asserted, not demonstrated. In the language of one board, "it goes without saying." Too often, it does.
The study links that habit to outsized costs for smaller players. SMEs are typically the "later users" facing opposition or cancellation, and they already contend with shrinking pools of registrable words, over-broad claims by incumbents, and a marketplace where big brands guard vast penumbras. When tarnishment turns on product stigma rather than proof, the deck tilts further. The author also points to a quiet contradiction: famous owners sometimes register in the very classes they later call reputationally toxic, then wield those registrations against newcomers. It looks like overclaiming on the way in and moral hazard on the way out.
The prescription is direct. Abolish product-based tarnishment at both registration and enforcement stages. If lawmakers keep any form of the rule, raise the bar dramatically: require concrete, verifiable harm and consider estoppel when a reputed owner has itself staked claims in the "tarnishing" categories. Preserve only sign-based cases - genuinely degrading uses - and even there, set strict, speech-aware thresholds. Above all, center autonomy: in the absence of confusion and proof of damage, let consumers process associations and let smaller firms compete.
Policy runs through the piece. Sustainability is not just carbon and recycling; it is also the health of the competitive fabric. SMEs drive innovation and jobs, and their autonomy matters. A trademark regime that treats herbicides, sex products, or detergents as reputationally unclean by default may protect an image, but it also freezes the marketplace in a pose chosen by the powerful. That is not neutral. It is a choice.
The study does not deny that brands suffer in the real world. Crises hit from outside and within; images crack; reputations fall and recover. But those events come with facts. They leave trails in sales and surveys. What the paper resists is a legal short-cut that converts cultural instinct into doctrine. Famous marks are durable. They have megaphones and budgets. SMEs have applications and hope. If tarnishment is to remain in European law, the author suggests, it should be a scalpel, not a club.
Disclosure: This article is based on an open-access law study and summarizes its findings without independent review of the underlying EUIPO files.
