Greenwashing Trade Marks

With growing awareness around climate change and an increasing demand for sustainable products, businesses are changing the way they operate to become more “green”.

Many businesses are genuinely taking responsibility for their carbon footprints and are innovating in creative ways to adapt to meet the demand for sustainability. However, the increase in awareness of these issues may lead to some businesses feeling the pressure to appear more sustainable without doing the work to get there, or seeking to capitalise on the demand for sustainable products by marketing their products to appear sustainable, when in reality they are not. This is referred to as “greenwashing”.

When it comes to trade marks, what constitutes a “Greenwashing Trade Mark” then?

This is when a business incorporates a ‘green’ element into its trade mark in order to appear environmentally friendly or sustainable without evidence of this in its commercial activities. A business can also mislead consumers by using registered trade marks of other companies to denote they’ve received approval or certification from a third party that falsely shares their environmental practices. Greenwashing Trade Marks can also include ‘green’ imagery such as leaves, nature, recycling symbols or the colour green.

There is a risk that some trade mark applications will be “descriptive” rather than “distinctive” when it comes to denoting their green products/services and therefore the filing denied, but businesses are clever at getting around this. In the event a “green trade mark” is successful, it’s important that a business can back up its claims otherwise it may result in legal action, penalties or fines for deceptive and misleading conduct.

According to the European Commission, 42% of brands are guilty of wildly exaggerating their green credentials. And according to WIPO here;

“trade mark applications for goods and services that are related to the environment and to combatting climate change continue to grow. In September 2021, the European Union Intellectual Property Office (EUIPO) released its Green EU Trade Marks Report which analysed trade mark filings by searching over 900 terms associated with environmental protection and sustainability…from under 1,600 in 1996, the first year the EUIPO was in operation, to almost 16,000 in 2020. Filings for such marks currently account for between 10 and 12 percent of all filings each year.”

In Australia, there are hundreds of trade marks registered that contain words such as “clean”, “green”, “sustainable” or “eco.”

In 2022, the ACCC (Australian Competition & Consumer Commission) started cracking down on companies who “greenwash.”

Businesses must be able to demonstrate their environmental and sustainability claims.

Broad terms such as “environmentally friendly”, “green”, or “sustainable” had limited value and might mislead consumers, ACCC deputy chairman Delia Rickard said at the time, because they “rarely provide enough information” about what exactly they mean.

Rickard went on further to say; “The ACCC is hearing growing concerns that some businesses are falsely promoting environmental or green credentials to capitalise on changing consumer preferences.”

“It is important that businesses can back up the claims they are making, whether through reliable scientific reports, transparent supply chain information, reputable third-party certification, or other forms of evidence.”