Trade marks – beware of greenwashing!

Trade marks – beware of greenwashing!

Greenwashing is the term used where a business makes environmental claims about their products or services which are not strictly true. This can extend to trade marks so businesses should take care so they avoid running into issues.

Over the last few years, there has been a spotlight on businesses reducing their carbon footprint and considering their environmental impact. It is therefore no surprise that there has been an increase in applications for “green” trade marks as businesses seek to inform their customers of their green credentials. The term “green” in relation to trade marks includes any application where:

  • The specification makes claims that indicate the business and the goods/services they provide are sustainable.
  • The mark includes words such as “green” or “sustainable”.
  • A logo that includes a lot of “green” imagery (eg the colour green or lots of trees).

Although at this stage, there is no strict guidance surrounding a “green” trade mark application, applicants should be aware that other rules and legislation apply.

IPO 

In the UK, the Intellectual Property Office (IPO) may refuse an application on the grounds of deceptiveness or lack of distinctiveness.

A trade mark can be refused for being deceptive if it is of a nature that will deceive the public (e.g. an applicant claiming to act sustainably when they do not). However, when a trade mark application is assessed, the IPO examiner will not usually check whether the applicant supplies all of the goods or services in their specification or whether claims surrounding their environmental impact are true. This means that a “green” trade mark may be accepted by the IPO, unless it is obviously untrue.

A trade mark may be refused for a lack of distinctiveness if it uses generic terms which many other businesses use (e.g. “eco”). Although it may be tempting to rely solely on environmental terms, it is important to remember that a trade mark is meant to be a badge of origin and should include an element that makes it obvious that the trade mark relates specifically to the applicant’s business (and its products/services).

The IPO has complete discretion as to whether or not to accept an application, but even if the IPO accepts an application, this will not stop third parties opposing the application or, if the trade mark is successfully registered, subsequently seeking to revoke it.

There are a variety of circumstances in which the IPO will allow a third party to apply to object to or revoke a trade mark, and this extends to situations where someone considers that the use of a trade mark is likely to mislead the public, particularly as to the nature, quality or geographical origin of the goods or services on which it has been used. To reduce the risk of this happening, it is a good idea – when submitting a trade mark application – to consider how the trade mark is likely to be viewed by an average consumer, including whether it could be criticised for green washing.

Legislation

In the UK, the CAP Code provides a list of specific rules surrounding making environmental claims about goods or services. Some sections of the CAP Code will apply indirectly to trade marks, including:

  • The basis of any environmental claims must be clear.
  • Marketing communications must not mislead consumers about the environmental benefit that a product offers.

Registering and using a “green” trade mark may fall foul of these rules if they are used on marketing material that does not otherwise make it clear how far the brand impacts the environment or if it is used in association with claims that cannot be proven.

Any business that wants to register a “green” trade mark should carefully consider all aspects of their application, focusing on not only the word or the image, but what they could imply, and whether they are making claims that cannot be supported through the goods and services the trade mark is to be registered in.

If you have any questions as a result of this article, please contract: [email protected]