Validity Of Trademarks For Green Labels

Khurana and Khurana


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Green labels can substantiate sustainability claims through two ways.
India Intellectual Property
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Green labels can substantiate sustainability claims through two ways. First, by the use of collective marks such as "Ecomark" or "Rainforest Alliance". Secondly, through individual brand names which espouse eco-friendliness such as "Mama Earth" or "Earth Rhythm" or "No Nasties". The article focuses on the latter of these ways i.e., the use of individual product or service trademarks to espouse eco-friendliness. Products and services trademark use wordmark or picture mark to make sustainable claims. Common words include "Eco", "nature", "green", "earth" or "organic" either being used as moniker or as a prefix or suffix to another word. Using pictures or graphics of plants or clean water is also regularly used to promote eco-friendliness.

The growing sustainability movement has seen a rise in green labels. While studies on the number of green labels have been limited, a recent report published by EUIO (European Union Intellectual Property Office) in 2020 found that, it received 1,588 applications for the registration of green EU trade marks in 1996 and approaching 16,000 such applications in 2020, with annual growth reported most years in between. Green filings accounted for 11% of all EU trade mark applications last year compared with just 4% of the total applications recorded in 1996. Given the increasing popularity of green trademarks, it is important to discuss the validity of green marks based on two particular grounds: descriptiveness and deception about environmental performance of the product or service.

Green labels often use a common set of words like "nature", "green" and "eco". The choice of words is even narrower as a specific industry targets a specific environmental attribute. For example, car manufacturers would obviously be keener on using words that describe green energy. Similarly, electrical appliances would like to portray themselves as energy saving while the attributes targeted by the skincare industry would be cruelty free and recyclable container. Arguably, all of these words used to portray certain qualities would be considered descriptive. Descriptive words may not be distinct enough to warrant trademark protection. However, countries have opined opposingly.

In India, green brands are often granted trademarks when combined with other words (either unique or descriptive. For example, Green India is a registered trademark by a tours and travel company. In Natures Essence Private Limited v. Protogreen Retail Solutions Private Limited, the court held that company using the name "nature's tattva" infringed the trademark "Nature's Inc" even though they were dealing in different product, although the category of products was the same. The Delhi High Court held that "nature" is a descriptive word. However, when it is used in conjunction with "Inc.", or "Essence", it assumes a definite and distinct - as well as distinctive - connotation and meaning, which is totally different from "Nature" per se. Similarly, in Mother Sparsh Baby Care Pvt Ltd Versus Aayush Gupta, it was held that "Plantpowered" is a distinct trademark. The court held that "The words 'PLANT' and 'POWER' by themselves, when considered as standalone words, may be descriptive.

However, when used in conjunction with each other for identical products, there is likely to be confusion between the Plaintiff's products and Defendant's products". Contrary to India's standpoint, the position taken in Europe is that a mere combination of elements, each of which is descriptive of characteristics of the goods or services themselves, remains descriptive. However, if due to the unusual nature of the combination in relation to the goods or services a combination creates an impression that is sufficiently far removed from that produced by the mere combination of meanings lent by the elements of which it is composed, that combination will be considered more than the sum of its parts.

The EU has a long list of green labels it has rejected for green brands on grounds of descriptiveness. Some of these brands include: EcoTrend ECOLAB, EcoPerfect, EcoDoor, EcoPro, EcoTherm, EcoTech, EcoPreform, EcoFinishes, GreenWorld and GreenLine and Carbon Green.

Even USA has a similar, and a more intresting viewpoint than that of EU. In 2013, the USPTO rejected the trademark for "Green Seal" which they tried to register for a tape. The USPTO examining attorney refused registration on the ground that the mark was deceptively misdescriptive under Section 2(e)(1) of the Lanham Act and comprises deceptive matter under Section 2(a) in that it falsely and materially indicates that the applicant's goods are environmentally friendly when, in fact, they are not. Interestingly, the company was not trying to make any eco-friendly claims, they were expanding their line of pre-existing tapes named Red Seal and Blue Seal, and Green Seal seemed like an obvious choice to them.

However, the Board held that the word "'green' directly conveys information to potential consumers that the tape products are environmentally friendly." the Board concluded that the perceived green quality of the tape products would be likely to affect the purchasing decisions of relevant consumers. The position in EU and the USA suggests a new trademark regime where trademark laws is being used to combat greenwashing. However, this might be a weak measure as a trademark rejection does not prevent a company from using the green label, and not prevent it from freely making false claims. Neither would it be possible for the patent office to attest to the veracity of the claims.


Companies today want to capitalise on the sustainability movement. Use of green labels may help with marketing however protecting the same through Trademark Law can vary in difficulty. In India, such labels can be protected by combining two or more descriptive words. But in Europe even a combination of words won't suffice and in the USA any kind of words that suggests eco-friendliness won't stand on the grounds of descriptiveness. Perhaps, India in the future, with the increase in green label trademark application start echoing the sentiments of Europe and the USA's trademark law.

As for deception, trademark laws can supplement advertising laws of various countries to check greenwashing claims and to avoid confusion among the public, as has been done in EU and the USA. Supplementing the advertisement law will help balance the drawbacks of trademark law.

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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