Can Trademarks Ever Be Green? Between Green-Branding and Greenwashing
Published: March 10, 2021
Massimo Maggiore emlex – Eva Maschietto Massimo Maggiore Milan, Italy Emerging Issues Committee—Climate Change and Trademarks Subcommittee
Consumers are demanding positive messages about the environmentally friendly properties of the products and services they buy. Employing green-branding practices using terms such as “eco” or “green” is an attractive marketing tool for businesses. Yet one should not overlook the risks of using invalid trademarks or of falling afoul of the laws prohibiting misleading practices.
We live in an era of consumeristic, augmented environmental sensitivity. A common strategy or “must-have” marketing tool for many companies is to cultivate green brands and eco-marks—trademarks, service marks, and certification marks that communicate environmentally friendly products, services, or practices. Consumers are growing increasingly sensitive to the toll on the environment exacted by their purchases and are seeking reassuring messages about the green properties of products and services. The acronym LOHAS, standing for “lifestyles of health and sustainability,” has been used to identify these eco-conscious consumers.
Green-Branding vs. Greenwashing
Green-branding refers to either of the following (or a combination of the two):
- The practice of using trademarks that, through their words or symbols, convey messages of environmental friendliness. Words such as “green,” “eco,” “sustainable,” or “zero impact,” or the depiction of leaves or clear water within a trademark work in this direction; and/or
- General slogans about “greenness” used in conjunction with a brand.
Examples of the first usage are:
- Marks such as ECO SAFE TEXTILE, a certification trademark for children’s textile products; or
- GREEN WORLD TRAVEL, a service mark used to identify sustainable tourism services.
Examples of green slogans supporting eco-marks are as follows:
- “Growing greener every day,” used in conjunction with the “green mom co.” mark identifying an online store offering eco-friendly products; or
- The phrase “High Performance. Low Emissions. Zero Guilt.” used to advertise hybrid SUVs.
Green-branding can, however, morph into “greenwashing,” which comes with negative connotations.
Greenwashing refers to the use of false, misleading, or unsubstantiated claims about the environmental friendliness of products, services, or practices. The term dates back to at least 1986 when it was coined by the environmentalist Jay Westervelt.
Greenwashing practices may have legal consequences under the laws regulating advertising and trade practices. This article first focuses on the laws and practices of the European Union and a parallel system in the United States concerning the rules on misleading advertising and practices. It then looks at aspects of trademark laws that concern the granting of green trademarks across these jurisdictions.
Greenwashing refers to the use of false, misleading, or unsubstantiated claims regarding the environmental friendliness of products, services, or practices.
The Legal System in the EU
In the EU, Directive 2005/29/EC on unfair commercial practices (the UCPD) is the main general legislative body applicable to misleading advertising and other unfair practices. It applies to all business-to-consumer (B2C) commercial practices, including those involving environmental claims. The main tenets of this law are as follows:
- The principle is that whatever might distort the economic behavior of consumers is contrary to the UCPD. This is particularly the case when a trader of a good or service uses false, ambiguous, or unsubstantiated claims. Any such claims would lead to the trader’s action being qualified as misleading;
- The test for whether a practice will be considered misleading consists of establishing whether an ideal or average consumer of the good or service category would be led to take a transactional decision that he or she would not have taken otherwise;
- With specific reference to environmental claims, a 2014 study of the EU Commission provides guidance on how traders can avoid charges for unfair commercial practices. Environmental claims should not only be factually correct, but also be presented in such a way as to avoid ambiguity or incompleteness. The following is a selection of the guidance:
- There should be proportionality between the claim and any environmental benefits. Environmental claims should not overstate environmental benefits of goods or services, nor unduly suggest a total lack of negative impact;
- Traders should not use vague or general terms such as “environmentally friendly,” “eco-friendly,” ”harmless,” “natural,” or “sustainable,” as they are potentially misleading for consumers;
- There should be a direct link between the environmental benefits of products and the relevant claim;
- Visual or sound/music elements must be used proportionately to the ecological arguments and evidence that support them. Elements evoking nature must not mislead about the environmental credentials of the good or service. For example, it is reported that the Swedish sectorial guidelines on environmental claims for cars goes a step further, providing that “green images” such as those featuring leaves, trees, or vegetation should not be used unless there is a relevant connection to the claim; and
- Consumers’ concern about the environment should not be abused. For example, the Norwegian guidelines warn against the use of an emotional appeal to the conscience of consumers in environmental claims (for instance, “think about the polar bear”). Clarity and precision in the use of terminology is required and overly technical terms should be avoided.
An overarching principle of EU law is that any environmental claim must be supported by evidence or data acquired through recognized methods or sufficiently robust processes. Traders are responsible for providing such evidence.
A Look at the United States
The legal framework is structurally more composite in the United States because of the different levels of regulation (federal vs. state law). There are three avenues through which a “greenwashing” claim may be brought: (1) by an unfair competition/false advertising claim under the Lanham Act and other relevant federal laws; (2) by a Federal Trade Commission (FTC) or state attorney general public enforcement action; and (3) by a state law claim for false advertising or another related theory of liability.
An overarching principle of EU law is that any environmental claim must be supported by evidence or data acquired through recognized methods or sufficiently robust processes.
The substance of the U.S. laws to a large extent mirrors the EU legal framework described above. The endpoint of any misleading case in both geographies can be the levying of high fines. In the United States, this can occur when the action is brought by a public enforcement agency, such as the FTC, or following a judgment for compensation of damages when a misleading claim is brought before a court of law. Similar to the EU, the FTC has, since 1992, published guides for the use of environmental marketing claims (so-called “Green Guides”). The guidance is meant to help marketers avoid consumer deception, particularly by qualifying the company’s green claims. It also provides a detailed explanation of the “do’s and don’ts” applicable to the most frequently used environmental claims.
The Green Guides give especially significant direction about general claims of environmental benefit. Such general claims are often used in connection with trademarks, in the form of, for example, expressions such as “eco-friendly” or “zero-impact.” Like the guidance provided in the EU, the Green Guides warn marketers to avoid unqualified general claims because they will most likely be considered deceptive, as “it is highly unlikely that marketers can substantiate all reasonable interpretations of these claims.”
Green Brands and Trademark Laws
Companies may fall afoul of the prohibition on deceptive practices when it comes to eco-friendliness claims, even more so when the green claim is ingrained in the trademark itself, due to the brevity that marks normally should have in order to preserve their communicative effectiveness. It is impractical to extensively qualify a green claim implied in a mark. This exposes trademarks, both in the EU and the United States, to refusal of registration by the Trademark Office, if not to subsequent revocation for deceptiveness. The author has been unable to trace any cases of revocation of registered trademarks in the EU or United States due to the deceptiveness of the green claims they contained. There is instead an abundance of cases concerning the refusal of green trademark applications on descriptiveness grounds in these jurisdictions.
Descriptiveness of trademarks is on its face easier for Trademark Offices to find than deceptiveness. The latter presupposes the existence of actual deceit or a sufficiently serious risk that the consumer will be deceived. Judgment of the Court of Justice dated March 30, 2006, case C-259/04, Elizabeth Emanuel, EU:C:2006:21. It therefore calls for the Office to conduct a factual investigation on the characteristics of the actual products or services for which the trademark might be used. Finding descriptiveness is instead essentially a linguistic exercise. It requires the Trademark Office to focus on the ordinary dictionary meaning of words to determine whether such words would be intended as a designation of the quality or other characteristics of a product or service rather than as an indication of their commercial origin.
Both EU and U.S. Trademark Offices tend to refuse altogether the registration of most trademarks that are suggestive of environmental properties of the products or services that they identify because they lack distinctiveness. A recent example in the United States concerns the application for the trademark CARBON NEGATIVE FIBER, (serial number 88634968) filed on September 28, 2019, to identify natural fibers for use as reinforcements and fillers in composite materials used in the manufacture of a variety of industrial and consumer goods in Class 22. The examiner in that case issued a provisional refusal on grounds of being descriptive and indicated that: “In this case, both the individual components and the composite result are descriptive of applicant’s goods and/or services…. Specifically, the wording CARBON NEGATIVE FIBER immediately informs consumers that the identified fiber goods have the net effect of removing carbon dioxide from the atmosphere, that is, fiber that is carbon negative.”
[The U.S. Green Guides] help marketers avoid consumer deception, particularly by qualifying the company’s green claims.
The EU Intellectual Property Office Guidelines for examination of European Union Trade Marks (EUIPO Guidelines) likewise provide that “terms merely denoting a particular positive or appealing quality or function of the goods and services should be refused if applied for either alone or in combination with descriptive terms.” The EUIPO Guidelines include as examples of descriptive terms “eco” as denoting “ecological” and “green” for environmentally friendly. The case law is rich with examples of such generic green trademark applications being refused (such as EcoTrend ECOLAB, EcoPerfect, EcoDoor, EcoPro, EcoTherm, EcoTech, EcoPreform, and EcoFinishes).
It is unlikely that even more complex green slogans applied for as trademarks would pass muster with the Trademark Office. Case law precedent includes the trademark applications of the slogans “#savetheocean” or “Save our Earth Now,” which were refused registration for lack of distinctiveness. The basis for refusal in both cases was that the relevant target consumer would immediately recognize and perceive the sign as a promotional laudatory expression, indicating that the goods represent an environment-friendly alternative to other, similar goods, and not as an indication of commercial origin.
Recommended Policies and Conclusions
Trademark Office practices in the EU and United States show a fair degree of skepticism toward green trademarks. More leeway might exist for the use of terms and imagery that are evocative of the green culture behind a brand while staying away from the monopolization of everyday language. Short of specific prescriptions in trademark law, brand owners should be wary of breaching laws on unfair trading practices and misleading advertising due to the message given by the brand itself or its usage.
To avoid greenwashing practices, the following is recommended:
- Be creative in inventing neologisms that may communicate some environmental content to consumers without overtly including some of the common “green” terms. Examples include marks such as ENVIROSURE, SUSTAINABILIFY, REUSIFICATION, and GEOFILE.
- Whenever green claims are used, be compliant with the aphorism “demonstrable, transparent, clear.” Avoid vague and generic environmental claims, along with claims overstating “greenness.”
The above recommendations should help trademark owners avoid the entry barrier to the trademark registry in at least the EU and the United States. Any signs that are obvious about a green quality of a product or service should be expected to be refused registration. The recommendations should also help avoid deceptiveness as yet another absolute ground for refusal of trademarks that are not honest about their green promise or, if registration is granted, their subsequent revocation.
Although every effort has been made to verify the accuracy of this article, readers are urged to check independently on matters of specific concern or interest.
© 2021 International Trademark Association
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