The environment is on the minds of consumers these days. And in
response, a multitude of products and services claiming to be
"green" or "eco-friendly" are stacking
supermarket aisles. The Trade-marks Register confirms the
proliferation of trademarks with an environmental angle: the term
"green" appears in 2,688 active marks incorporating the
term; "eco" appears in 1,145 active marks; and
"enviro" appears in 532 active marks.
As a result of new guidelines on the use of "green"
terminology, obtaining a trademark registration for a brand that
includes an environmental claim does not mean that the registrant
can necessarily make that claim, regardless of how environmentally
friendly the product actually is. These guidelines,1
developed by the Canadian Standards Association in partnership with
the Competition Bureau, were seen as necessary to protect consumers
from being misled by the wide use of environmental claims as a
marketing tool. The guidelines are not law, but the Competition
Bureau will use them to evaluate whether a claim is false or
misleading when it enforces the Competition Act, the
Consumer Packaging and Labelling Act or the Textile
In implementing the guidelines, the Competition Bureau
recognized that as consumers become more aware of the impact of
their purchasing decisions on the environment, they increasingly
turn to environmentally friendly products. Seeing a trademark with
an environmental claim, consumers may assume that the product is
more environmentally friendly than competitive or predecessor
products; however, the products may not always be better for the
According to the new guidelines, environmental claims must be
specific and provable, and supporting data for these claims must be
made available on request. Having the data publicly available on a
website may be a good way of complying with the guidelines and
managing customer service inquiries. If the packaging design allows
for an explanation, it may be wise to include a specific provable
statement about the product, such as, "This product is
designed to have a life that is X% longer than the previous
The guidelines discourage the use of terms such as
"green," "environmentally friendly," "all
natural" and "eco" because these terms are both
difficult to prove and vague. Although the use of these terms has
not been prohibited, businesses should be prepared to provide
backup data to support such claims, if requested. The guidelines
also indicate that using natural objects (e.g., fish, trees) in a
product logo may be viewed as misleading unless there is a direct
and verifiable link between the object and the benefit claimed.
The Competition Bureau recognizes that companies may wish to
reassess their advertising and labelling in light of the new
guidelines. Therefore, a one-year transition period has been
provided before the guidelines are fully implemented. In the
meantime, particularly egregious cases of false or misleading
environmental advertising may prompt action by the Competition
Environmental claims that raise concerns of misleading
advertising will be examined on a case-by-case basis. Should the
Competition Bureau determine that further action is warranted, it
may investigate or seek the business's voluntary compliance. If
the Competition Bureau concludes that a business has contravened
the misleading advertising provisions of the Competition
Act, the Consumer Packaging and Labelling Act or the
Textile Labelling Act, it can take action to impose one of
the following penalties:
Under the criminal regime, the maximum penalty for an
individual or a corporation is a fine at the discretion of the
court and/or imprisonment for up to five years.
Under the civil regime, the maximum penalty is an
administrative monetary penalty of up to $50,000 for an individual
and $100,000 for a corporation.
Under the labelling statutes, there are provisions for product
seizure as well as potential criminal penalties for contravening
either labelling Act mentioned above, which could result in fines
of up to $10,000, as well as imprisonment of up to one year.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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A recent Saskatchewan Court of Queen's Bench decision allowed a court-appointed receiver to sell and transfer intellectual property rights free and clear of encumbrances, finding that a license to use improvements of an invention was a contractual interest and not a property interest.
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