The Changing Climate Around Green Trademarks
Introduction
Green trademarks aim to promote sustainable development in the commercial dynamic and encourage the evolution of a business model to fit the needs of an environmentally conscious community.
Consumers are becoming increasingly conscious of their consumption and its impact on the ecosystem. Establishments, start-ups, and other business ventures alike have acknowledged the potential asset value of this concept. They have therefore adopted various means and methods to incorporate the same within their business models. Branding is a significant means, and trademarks play a vital role in facilitating organizations to achieve this. Hence, green trademarks have become popular for brands looking to create an environmentally friendly image.
Why invest in green trade marks?
As logos indicating the sustainable nature of the goods and services become increasingly common, legal systems across the globe are recognizing the specificity of these kind of trademarks, also at times falling under the categories of certification marks, collective marks, or even guarantee marks[1]. The following aspects map out the more pertinent factors that have brought green trademarks under the limelight.
● Consumers' eco-awareness and the sustainability trends
The current consumer scenario is such that it comprises an augmented sensitivity toward the environment. Consumer behaviour is becoming increasingly conscious of the sustainable nature of goods and services which has led to consumers constantly seeking reassurances from companies as to whether the product befits the set standards of sustainability or not.
● Green branding and eco-labeling – An ideal marketing tool
Trade marks used in conjunction with a brand, through their words and symbols such as 'zero impact,' 'eco', 'green', depiction of leaves, green slogans, etc., can convey the products' sustainable nature and services rendered thereunder. Further, sustainable branding in the form of trade marks, certifications marks, labeling, etc. will immensely contribute to a brand's credibility and boost their market share by promising a genuine guarantee to the consumers that the goods and services they offer meet the requisite standards. This concept can be seen in several new product launches and ad campaigns. Amongst several examples are the Australian GreenHouse Friendly label, eco-standard labeling and packaging by BASF and Phillips, 'Earth Choice' by Domtar Paper for eco-friendly papers, the brand 'Honest Company' for eco-friendly baby diapers, body care and other household products, 'Greemmom Com.', an online retail store for eco-friendly products, 'Good and Green – Godrej' and 'Greener India', 'CONSCIOUS' by H&M, 'JOIN LIFE' by ZARA for eco-friendly processes and sustainable raw materials, 'DINEARTH' for alternative source tableware and crockery products, 'MAMAEARTH' for toxin-free natural beauty care products as well as 'BIOTIQUE' for skin and hair care developed from ayurveda with 100% botanicals[2].
● Contribution of green trade marks in business strategies via CSR
Countries across the globe, their respective governments, and governing policies are inclined toward sustainable development. For instance, countries like Japan, Australia, the United Kingdom, Netherlands, and Germany have created policies encouraging responsible business practices. Further, in India, Corporate Social Responsibility (“CSR”) has been set up under the Companies Act 2013. To that extent, registration of green trademarks affords organizations the ability and opportunity to enact their CSR promises and further their goodwill in the market.
Registrability
While, in the past, the concept of sustainable intellectual property has primarily remained focused on technology, innovation, and patents, the present-day dynamic attempts to bridge this gap. The European Union Intellectual Property Office (“EUIPO”) has recognized the presence of sustainable marks, and it has gone on to say that:
"…environmental considerations are becoming increasingly important for brand owners filing trademark applications, and to the consumers who buy the resulting products and services".[3] This is further proven through its inventory of the 'Harmonised Green Terms' database with over 85,000 acceptable green terms under the 'GREEN EUTM' Category. The Office has since seen over 2 million EUTM applications for such marks.[4]
Another jurisdiction not too far behind is the United States and the United States Patent and Trademark Office (the “USPTO”), whose trademark database as of 2014 contains over 10,000 applications for such marks. [5]
Although this surge in the green trademark applications highlights the value of such protection, it also subjects future applications to potential objections either basis of the earlier marks or based on the descriptiveness or lack of distinctiveness. In this regard, the USPTO and the Trademark Trial and Appeal Board (the “TTAB”) have issued several decisions opining that the use of generic terms such as "green" and "eco-'' immediately identify with the sustainable characteristics of the goods/services and thus are incapable of being distinctive. For instance, in re Cenveo[6], the trademark application for the mark "GREEN-KEY" for environmentally friendly key cards was denied because the word “green” was found to be descriptive. Similarly, in re Bargoose Home Textiles, Inc.,[7] the trademark application for the mark "ALLERGYGREEN" was denied for hypoallergenic, environmentally friendly bedding as it was found to be descriptive and lacked distinctive character.
In India, although the Intellectual Property Office (the “IPO”) is yet to devise a framework for the special protection of green trademarks, it may not be a very far-fetched concept considering the shift in the government's approach towards sustainability. In any case, green trademark applications may receive objections under Section 9 of the Trade Marks Act, 1999, for marks that may appear merely descriptive. Brand owners should keep the factors affecting registrability in mind while deciding upon a mark.
Registering green trademarks
In light of the above, it can be said that while trademark offices encourage the inclusion of sustainable indicators in marks, the surge in such applications has resulted in a fair degree of skepticism toward the potentially generic aspect of such marks. Brands should be aware of the same while attempting to use terms and imagery of sustainability to take full advantage of the credibility afforded through their use.
To avoid potential objections or refusal, the following points may be kept in mind:
● Brands must refrain from using merely descriptive marks and instead should focus on creative expressions conceived in-house that end users can identify with the source of origin while the marks communicate the sustainability factor of the brand.
● The use of unique graphic elements, claim over colour aspects, taglines, stylizations, combinations, or even disclaiming exclusive rights over the descriptive elements within the mark, as well as adopting marks suggestive in nature, may prove helpful in securing a successful registration.
● Another effective tool is certification marks. In India, the Bureau of Indian Standards (the “BIS”) has provided the certificate for an Ecomark for ecologically safe products that comply with environmental standards. [8] In addition, it is also worth noting that the Confederation of Indian Industry has conceptualized “GreenPro”, as a means to standardize brand sustainability. This type of ecolabel enables end-users in the building and manufacturing sectors to choose sustainable products, materials, and technologies to reduce environmental impacts during the construction, operation, and maintenance of their buildings and factories.[9]
● Brands may even consider whether their marks have gained secondary meaning. For instance, brands may provide evidence to support the fact that the mark is identified as a source indicator that has become independently recognizable. Secondary meaning can be established through consumer recognition, long-term advertising, and use.
Conclusion
To conclude, green trademarks play an essential role in combining the concepts of technology and sustainability of the environment under a single branding umbrella. Thus, they have become an essential marketing tool creating an appeal for products and services and an edge for the eco-friendly brand compared with rival brands. Since the linchpin here is sustainability, it also allows brands to fulfill their corporate social responsibilities. Thus, these marks offer immense potential for the growth and recognition of green initiatives of businesses.
[1]https://www.researchgate.net/publication/236343439_Legal_Aspects_of_Green_Trademarks [2] https://www.mondaq.com/india/trademark/1164138/role-of-trade-marks-in-promoting-sustainability [3]https://euipo.europa.eu/tunnel-web/secure/webdav/guest/document_library/observatory/documents/reports/2021_Green_EU_trade_marks/2021_Green_EU_trade_marks_FullR_en.pdf [4]https://euipo.europa.eu/tunnel-web/secure/webdav/guest/document_library/observatory/documents/reports/2021_Green_EU_trade_marks/2021_Green_EU_trade_marks_FullR_en.pdf [5]https://www.inta.org/perspectives/features/can-trademarks-ever-be-green-the-line-between-green-branding-and-greenwashing/ [6]https://ttabvue.uspto.gov/ttabvue/v?pno=77289355&pty=EXA&eno=21&_ga=2.86814424.114846663.1663930254-1876307895.1663564941#_blank [7]https://ttabvue.uspto.gov/ttabvue/v?pno=77255007&pty=EXA&eno=8&_ga=2.61712236.114846663.1663930254-1876307895.1663564941#_blank [8] https://en.wikipedia.org/wiki/Ecomark [9] https://globalecolabelling.net/organisation/greenpro/
