Climate change and sustainability are becoming ever more pressing items for businesses as consumer focus on these issues intensifies. Businesses are satisfying this consumer demand for sustainability by offering more green products and services, marketed by green claims.

This has resulted in a substantial 907% increase of green trade mark applications between 1996 and 2020 and a developed practice of trade marks that through their words (e.g., “green”, “eco”, “sustainable”, etc.) or symbols (e.g., depiction of leaves, clear water, etc.) convey a green message.

Green trade marks

According to the EUIPO a green trade mark is a “collective term for specific trademarks, service marks and certification marks that communicate environmentally friendly products, services or practices”. The EU has identified a list of over 900 terms that have been identified as green, such as “solar heating”, “wind energy” and “recycling”.

Trade mark applications for marks that specifically include direct environmental claims, such as calling a product “green”, “sustainable” or “eco-friendly”, are likely to face a refusal (or to be invalidated once registered), on one of the following grounds:

1. The mark lacks distinctiveness or is descriptive

For example, terms like “eco” and “green” are descriptive when used in connection with goods or services that purport to be environmentally friendly. Likewise, commonly used logos or symbols such as the recycling arrows or green leaves are not sufficient on their own to confer distinctiveness. GO GREEN, EV-GREEN, and green tec are all examples of UK trade marks refused under this ground.

2. The mark is of such a nature as to deceive the public as to the nature, quality or geographical origin of the goods or service.

However, brands have been getting creative and have found ways around this. For example, Patagonia has registered trademarks such as BETTER THAN NEW® to identify consumer goods. Another clothing company, Everlane, has been successful registering marks such as RECASHMERE® for goods made of recycled textile. These brands have alluded to their green credentials by using words that are suggestive rather than descriptive.

Other creative examples include inventing neologisms that communicate some environmental content without overtly including some of the common green terms. Examples include ENVIROSURE®.

As such, whenever green claims are used, it is important to avoid vague and generic environmental claims along with claims that overstate greenness.

Green claims

The rise of green branding and the use of green trade marks increases the temptation of “greenwashing”. Whilst there is no legal definition of greenwashing in the UK, the term is used to describe false or misleading claims regarding environmentally friendly products or services.

Consumer protection law does not prevent businesses from making environmental claims about their products and services, provided they do not mislead consumers. Clear rules and guidance on the topic have been developed which apply to UK businesses. These include but are not limited to:

1. The Green Claims Code and accompanying guidance, published by the Competition and Markets Authority (CMA) in 2021;
2. Advertising guidance on misleading environmental claims and social responsibility, published by the Advertising Standards Agency (ASA) in 2022; and
3. Rule 11 UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (CAP Code), published by the ASA.

However, enforcement of these rules is not easy. For example, the CMA has no direct enforcement powers meaning that it needs to take a business to court to enforce any breach of consumer law and thus of the Green Claims Code. The Digital Markets, Competition and Consumer Bill (DMCC), which is now at the report stage and set to be law by early 2024, changes that. Under the DMCC, the CMA will have direct powers to decide itself whether consumer law has been broken and impose directions or, in some cases, substantial fines without having to go through the courts. Whilst the DMCC does not explicitly mention greenwashing claims, it is expansive and, as such, the CMA will be able to rely on it to bring enforcement actions against unsubstantiated green claims or claims that overstate sustainability credentials.

The EU is also tackling the issue of unverified and/or unsubstantiated environmental claims in its draft Green Claims Directive. Companies supplying goods or providing services in the EU and wanting to communicate claims that relate to “significant” environmental impacts, aspects or performance will have to conduct a thorough assessment of these claims, backing them up with scientific evidence. They will also have to obtain approval by “verifiers” before being published. We will communicate further details of this legislation once it is available.

This increased regulation could result in an increased number of businesses keeping quiet about their environmental initiatives, for fear of being called out for greenwashing or for failing to hit their sustainability goals. This is what Treehugger coined in 2008 as “greenhushing”. Time will only tell if greenhushing is the new greenwashing.

Now more than ever, businesses should give careful thought and consideration before applying to register green trade marks and making green claims for their products and services.

The best way to ensure that you are operating within this new and emerging regulatory landscape is to work with a dedicated intellectual property solicitor. At JMW, our intellectual property team takes whatever steps are necessary to stay up to date with the law. This can ensure businesses enjoy the utmost protection for their IP and benefit from the full force of the law in securing and defending their assets.