It is correctly said that "Green is the new Black". Products with labels including terms like "100% natural", "sustainable" have become the new deal. Such products are preferred by environmentally sensitized customers thereby driving brands to adopt green trademarks and promote green marketing. From Puma to Godrej to Coca-Cola, a number of brands have adopted green trademarks, to exhibit their eco-friendly business practices that aligns with their corporate social responsibility.
In simple words, any trademark which emphasizes on being eco-friendly and sustainable can be termed as a green trademark. For example, Godrej has adopted and obtained registration for the tagline 'Good & Green' with an intent to produce 'Good & Green products' in order to fulfil their social responsibility of building a Greener India. Additionally, beauty brands like 'Mama Earth' and 'Biotique' are also covered under green trademarks.
The origination of green trademarks is the result of endless human exploitation to our ecosystem. Owing to climate changes, consumers are becoming more environmentally conscious and hence, businesses are exploring new ways to show their concerns to environment. To convince those minimalistic and environmentally sensitized consumers, businesses are committing to follow genuine eco-friendly practices. Green marketing is being embraced by brands in several ways including adopting trademarks/ taglines with terms like "sustainable", "eco-friendly", etc., for their products or using images of mountains, beaches, oceans and other natural phenomenon as their backdrop or merely putting green colour in the logos.
Green Trademarks: Importance/ Benefits
But why is green trademarking important?
- Thanks to green trademarks, consumers are becoming increasingly aware about pro-environment products, allowing them to make their purchases in alignment with their values.
- Green trademarks helps creating a differentiation between normal and sustainable products in the market.
- Attracting environmentally conscious customers, will subsequently help businesses to secure brand loyalty.
- By promoting genuine use of eco-friendly products, diverse climate change can be prevented, natural resources maybe preserved and pollution maybe reduced.
Drawbacks and Challenges of Green Trademarks
- Greenwashing
Many-a-times in order to demonstrate that their product is environmentally sound, brands adopt green trademarks and gets engaged in the act of making false, untrue and misleading sustainability claims and advertisements about their products. It is a deceitful marketing way used by brands to lure environmentally conscious customers into buying their products.
Just like in whitewashing where problematic elements are concealed and erased, similarly, in greenwashing by releasing positive information about products to environmentally sensitized customers, companies hide the reality behind their non-natural products.
The term greenwashing was first coined by American environmentalist Jay Westerveld in the year 1986. The said term found its origin in a critical essay penned down by Mr. Westerveld which mentioned how a resort in Fiji through its 'Save the Towel' movement asked customers to reuse the towels. Ironically, the same resort was rapidly expanding and was saving tons on laundry costs.1
A similar incident happened in 1980s, when the well-reputed petroleum brand Chevron through its 'People Do' advertisement campaign broadcasted ads through television and print media about their commitment to preserve environment, while in reality they were spilling oil in forests.
Hence, owing to increased greenwashing attempts by brands, consumers are now becoming skeptical of the green and sustainability claims laid out by brands.
- Descriptive Trademarks
Since companies directly use environmentally inclined wordings while such as 'Green', 'Eco', 'Natural' and many more in their trademarks, they fail to function as a trademark. In most cases, the said marks receive an objection/ refusal on the grounds that the mark directly describes the product it has been applied for.
International Perspective: European Union
In the year 2019, the European Commission promised to deliver a European Green Deal with an intent to make Europe, the first-climate neutral continent by the year 2050. The importance of Intellectual Property was also covered and included as one of the objectives of the commission.2
In light of the same, a study was conducted in the year 2019 dedicated to 'Climate Change Mitigation Technologies in the IP domain' which examined description of goods and services applied for marks filed with EUIPO since the year 1996. Through this study, more than 2 million applications were examined to sort out marks containing the terms 'green', 'sustainability' and various other eco-centric terms. The results showed that in the year 1996, less than 2000 green trademark applications were filed, which increased to a whooping number of almost 16, 000 in the year 2020. Further, 2021 saw a great increase in green trademark applications filed with EUIPO with total number rising to 21, 281.
What the law says in EU?
The aspects of 'Green trademark' are governed as per the provisions of Article 7 of the European Union Trade Mark Regulation 2017/ 1001, which mentions about non-distinctiveness and descriptiveness of a trademark.3
As per European Union Trademark laws and the recent judgments passed by the General Court of European Union, it appears that the Court believes marks containing commonly used and generic words like "natural", "bio", etc., fails to function as a trademark and are rather non-distinctive and descriptive in nature.
In the case of, Groschopp AG Divers & More v. European Union Intellectual Property Office (T-253/22 dated 01 February 2023), the Court held that the terms 'Sustainability through Quality' is a promotional phrase rather than a trademark of a commercial origin.4
Indian Perspective
Just like the European Union, green trademarks are often objected on the grounds of non-distinctiveness and descriptiveness in India under Section 9 of the Trade Marks Act, 1999. However, in several cases the Trade Marks Registry in India have granted protection to marks if they are in conjunction with one or more unique words.
For instance, in the case of Natures Essence Private Limited v. Protogreen Retail Solutions Private Limited (CS(COMM) 581/2020),5 Justice C. Hari Shankar of the High Court of Delhi, held that "Once "Nature's" 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. Even if "Inc." were to be treated as an acronym for "Incorporated", the mark has a distinctive identity all its own immediately apparent to the naked eye."
However, many-a-times brands obtain protection over their green claims through certification marks. Such marks certifies that a product is in compliance with standard norms and regulations but it is on the brands to convince customers about authencity of their marks by providing proper evidence. Energy Star Label, India Organic, GreenPro, etc., are some of the examples of eco certification marks.
Protection against Greenwashing in India
- Draft Guidelines for Prevention and Regulation of Greenwashing, 2024
The Central Consumer Protection Authority, India proposed 'Draft Guidelines for Prevention and Regulation of Greenwashing'6 in its meeting held on January 10, 2024.
The said guidelines have been formulated with an attempt to curb greenwashing and hence, will be applicable to advertisements; a service provider; product seller; advertiser; or an advertising agency or endorser whose service is availed for the advertisement of such goods or services.7 Further, Clause 5 of the guidelines prohibits any of the said persons to be engaged in the act of greenwashing. While, Clause 6 further clarifies that, use of generic terms including 'clean', 'green', 'eco-friendly', 'eco-consciousness', 'good for the planet', 'minimal impact', 'cruelty-free', 'carbon – neutral', etc., shall not be used without properly substantiating evidence supporting accuracy of such claims.8 The evidence may include all necessary information shared by way of advertisement or communication or by affixing a QR Code or URL on relevant product or digital medium. Further, use of words like "100% natural", "ozone safe", "carbon neutral", "degradable", etc., must be substantiated by authorized certification, verification or scientific evidence.9
- Existing Indian Legislations
Consumer Protection Act, 2019
Section 2(47) of the Consumer Protection Act, 2019, lays down
provisions about Unfair Trade Practice, and mentions that false
representation of quality, grade, quality, warranty/ guarantee of
performance, nature etc., of any goods or services is covered under
the purview of unfair trade practice.10 Further, the
Central Consumer Protection Authority has the power to issue
directions to such person to discontinue the advertisement and even
penalize the said person, by virtue of Section 21 of the
Act.11
The Advertising Standards Council of India
(ASCI)
On January 18, 2024, ASCI issued "Guidelines for Advertisements Making Environmental/Green Claims"12 and the same came into effect from February 15, 2024 to prevent advertisers from making false, deceptive or misleading environmental claims in their advertisements.
Conclusion
It goes without saying that green trademarks, if adopted and
used in the correct manner are a great asset for brands who wish to
promote their pro-environment practices. If such green marks have
gained a repute in the market, the same attracts a huge number of
eco sensitized consumers thereby increasing brands' value in
the market. However, registration of such green trademarks is a
challenge all around the world including India. To mitigate the
risks of trademark refusal, generic environment and nature centric
terms should be avoided, rather a trademark with unique
juxtaposition of words should be coined which maybe suggestive, but
not descriptive in nature.
Further, the onus is on the authorities to regularly devise and
update new policies and regulations in order to curb the issue of
greenwashing and to also create a system where green trademarks can
function effectively without any doubt on its authenticity.
Footnotes
1. https://www.recordonline.com/story/news/2009/08/01/greenwashing-gets-his-goat/51926672007/
3. Article 7 of the European Union Trade Mark Regulation 2017/ 1001
4. https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:62022TA0253
5. High Court of Delhi, Natures Essence Private Limited v. Protogreen Retail Solutions Private Limited (CS(COMM) 581/2020)
7. Clause 3, Draft Guidelines for Prevention and Regulation of Greenwashing, 2024
8. Clause 6, Draft Guidelines for Prevention and Regulation of Greenwashing, 2024
9. Clause 7, Draft Guidelines for Prevention and Regulation of Greenwashing, 2024
10. Section 2(47) of the Consumer Protection Act, 2019
11. Section 21 of the Consumer Protection Act, 2019
For further information please contact at S.S Rana & Co. email: info@ssrana.in or call at (+91- 11 4012 3000). Our website can be accessed at www.ssrana.in
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.