The vanishing glamour of nano?

In the last decade, the term ‘nanotechnology’ has become fashionable, and the subject of passionate debate as to how the subject should be handled through law and regulation. But until recently, the average consumer’s chances of actually encountering any product using nanotechnology were low. Nanotechnology has been largely confined to the laboratory with both its potential benefits and its potential risks still more speculative rather than actual.

This has not stopped marketers latching onto the perceived appeal of nanotechnology as a selling point for products of all kinds. Trade marks have been registered for everything from NANO-TRENCH for milling and cutting equipment to NANO CLEANERS for dental and cleaning products – whether or not the product is actually made using, or incorporates, any nanoscale materials. The validity of such trade marks may be open to challenge, given that it is not possible to register marks which consist exclusively of indications which may serve, in trade, to designate the kind, quality or other characteristics of the goods or services. Note that the prohibition only requires that the indication may designate a characteristic, rather than that it does. Indeed, in February 2015 the General Court of the European Union has approved a refusal by OHIM (the EU agency responsible for registering trade marks and designs) to register NANO as a Community trade mark for toy or educational robots, on the grounds that the relevant public would perceive the mark as indicative of the small size of the goods or the fact that they were based on nanotechnology. The applicant argued, reasonably enough, that no one could imagine they were selling nanoscale robots since these would be far too small to observe with the naked eye or manipulate by hand, but the Court accepted instead OHIM’s argument that the public would not necessarily appreciate the precise mathematical meaning of the term but would only understand it to mean ‘very small’. Further, the Court also accepted that the public might alternatively understand that nanotechnology had been used in some aspect of the electronics, computing or engineering which were relevant to the design and manufacture of the goods.

Both of these issues could well be argued in respect of many already registered marks including NANO, particularly as the public at large becomes more used to the notion that nanoparticles may prove to be incorporated in everyday products. Labelling requirements are now part of the increasing regulation of nanotechnology. For instance, the new EU Cosmetics Regulation requires ingredients in nano form in cosmetics to be separately listed and the 2011 EU Regulation on Food Information to Consumers similarly obliges producers to specify ingredients in nanoscale forms. Over time, consumers in general may perceive the descriptor NANO less as a marketer’s hype and more as a simple statement that the product does, indeed, incorporate some aspect of nanotechnology. Of course, where a registered mark has been extensively used since registration, such that it has acquired distinctiveness in the public mind independently of any natural meaning, then such marks will remain valid. But for those more speculatively registered, or less extensively used, a shift in public interpretation of the term may result in vulnerability.

These regulatory obligations have been introduced precisely because the novelty of nanotechnology being engineered into a wide range of products means that understanding of what potential risks it may entail is still very incomplete. Research indicates that nanoparticles have a more pronounced effect on inflammation, cell damage and cell stimulation than an equal mass of particles of the same material of greater size. It is also suggested that the main public health concerns will emerge from chronic, long term low dose exposure – thus perhaps sharing with asbestosis the highly regrettable characteristic of not being observable in an individual until it is already too late. But data as to the route or extent of exposure which might cause disease, whether those effects persist when the nanoparticles are bound into other substances, are not yet available. An iPod Nano® which you can flaunt may be one thing, but components invisible to the naked eye, and on the safety of which the scientific jury is still out, may be another. Like Kate Bush’s once-precious glow-in-the-dark (because radioactive) yo-yo, some glamorous toys ultimately prove too dangerous. 

In these circumstances, NGOs such as Friends of the Earth and the European Environmental Bureau, with which the German Federal Environment Agency agrees in part, continue to press the European Commission to introduce a comprehensive register of nanomaterials being released onto the market in Europe, following the French model introduced in 2013. After all, monitoring for potential risks in the future will be doubly hard if it cannot be said what exposures may have been.

All of this means that manufacturers, and their suppliers, need to think carefully before raising ‘nano’ claims on their new products, whether actually incorporating nanotechnology or not. And for those making or selling genuinely nanotechnology products, it is essential to plan ahead for future reporting and labelling requirements even if at present the sector in which their products fall is not directly regulated.