What to Know When Using Green Brands
As awareness about sustainability grows, both businesses and consumers rely on branding to communicate green messages. But, as James Nurton discovers, in doing so they need to navigate an increasingly complex web of environmental rules and regulations.
Consumers today are increasingly conscious of—and even driven by—concerns around sustainability and climate change. Brands are a powerful means of communication and, not surprisingly, businesses are using trademarks and other intellectual property (IP) rights to convey messages about their sustainable credentials. In fact, according to a recent EUIPO report, in 2022, 14.5 percent of all EU trademark applications referred to goods or services aimed at environmental protection and sustainable development.
Monday's session in the IP and Innovation Track, Green Marks: A Comparative Review of Greenwashing Challenges in Common Law and Civil Law Jurisdictions (Monday, May 20, 10:15 am—11:15 am) will address issues relating to the selection, registration, use, and commercialization of green trademarks as well as related matters such as the sustainable destruction of counterfeits.
“It’s important to make sure we keep abreast of the changes and seek specialist help where necessary,”
- Adjoa Anim | HGF (UK)
“We’re just starting the conversation,” says Adjoa Anim (HGF, UK) who is moderating and presenting part of the session, which brings together perspectives from industry, private practice, and regulators.
Ulla Loreth (Puma SE, Germany) will discuss how brands can use the United Nations Sustainable Development Goals (UN SDGs) as a guide to promoting sustainability in all areas of their business while three speakers will look at recent regulatory and related developments in Europe, South Africa, and the United States.
The European Union has set bold targets to reduce net greenhouse gas emissions in the European Green Deal. As part of this, the Directive on empowering consumers for the green transition was passed last year and must be implemented by EU Member States by 2026. Paolo Lazzarino (ADVANT Nctm, Italy) predicts that this will have an impact on owners of green trademarks, including marks that use terms such as Eco or Green or that make use of figures such as green leaves and trees.
“You should take a product lifecycle approach and consider all the stages of production, including the raw materials.”
- Paolo Lazzarino | ADVANT Nctm (Italy)
“The directive aims to crack down on generic environmental claims, including on labels and branding,” he says. “This means owners of green marks need to specify and substantiate their claims.” This could be done by providing details of environmental credentials on or inside packing or on a dedicated website accessible via a QR code, for example.
Whatever approach is taken, the information should be comprehensive, says Mr. Lazzarino: “You need to take a product lifecycle approach and consider all the stages of production, including the raw materials.”
In the U.S., says Emily Lyons (Husch Blackwell, USA), regulation is mostly at the state level. “It makes it extremely difficult to counsel clients on product launches,” she says, with the result that many companies take “a lowest-common denominator approach.”
One of the biggest risks that brands face in the U.S., according to Ms. Lyons, is class action litigation from consumers about false claims. “These cases are often settled for millions of dollars and they are increasing,” she says.
In one case in New York, for example (Dorris v. Danone Waters) consumers are challenging the claim that Evian Natural Spring Water bottles are carbon neutral. In a ruling in January this year, a judge rejected a motion to dismiss, saying that a “reasonable consumer could plausibly be misled by the ‘carbon neutral’ representation on the Product’s label.”
The case serves as a warning to brands, says Ms. Lyons: “You need to have the data to back up your claims and make sure you don’t make commitments without taking action. Brand owners are going to face a lot more scrutiny on this.”
“Sustainable destruction projects are a step in the right direction, but the costs can be significant so more machinery and investment are needed.”
- Paul Ramara | Spoor & Fisher (South Africa)
The same is true in South Africa, says Paul Ramara (Spoor & Fisher, South Africa), who will discuss the restrictions in the Trade Marks Act and Consumer Protection Act as well as the role of the advertising regulator, which regulates packaging. “You can’t mislead consumers by ambiguity or exaggeration,” he explains.
Mr. Ramara will also discuss programs to destroy seized counterfeit products in an environmentally friendly way, for example by converting clothing to pillows and furniture, plastic and rubber into concrete and glass and metal into household products. “These projects are a step in the right direction,” he says, but adds: “The costs can be significant, so more machinery and investment are needed.”
Today’s session will also include a presentation by Oliver Morris (UK Intellectual Property Office, UK) on the latest developments from an IP office perspective.
With the law developing fast in this area, and different jurisdictions moving at different speeds, it is incumbent on trademark practitioners to work closely with colleagues in marketing, regulatory and other departments to ensure they comply with regulations, says Ms. Anim: “It’s important to make sure we keep abreast of the changes and seek specialist help where necessary.”
She sums up the session’s message as follows: “You can make all the green claims you want, but if they’re not substantiated, or they’re misleading, it can lead to legal and reputational problems.”
