Positive messages about how the goods and services they purchase are environmentally friendly are in high demand from consumers. When implementing green branding strategies, businesses find it appealing to use "eco" or "green" terminology. However, one must pay attention to the dangers of using illegitimate trademarks or breaking the laws against deceptive business activities.

Eco-Awareness among consumers

We live in a time of increased environmental concern and consumerism. Growing green brands and eco-marks�trademarks, service marks, and certification marks that express ecologically friendly products, services, or practices�is a common strategy or "must-have" marketing tool for many businesses. Customers are looking for reassuring messages regarding the environmentally friendly features of goods and services as they become more conscious of the impact their purchases have on the environment. These environmentally conscious consumers have been designated by the abbreviation LOHAS, which stands for "lifestyles of health and sustainability."

Green-Branding vs. Greenwashing

One or more of the following (or a mix of the two) is referred to as "green branding":

1. Using trademarks that convey messages of environmental friendliness through their language or symbols. Words like "green," "eco," "sustainable," or "zero effect," as well as images of foliage or crystal-clear water contained within a trademark, can all be used to suggest this; and/or
2. Broad proclamations about "greenness" associated with a brand.

Examples of the first application include:

• Marks such as GREEN WORLD TRAVEL, a service mark used to distinguish sustainable tourist services; or
• ECO SAFE TEXTILE is a certified trademark for children's textile products.

Here are some examples of green catchphrases that support eco-marks:

• High Performance. Low Emissions. Zero Guilt" is used to promote hybrid SUVs.
• "Growing greener every day," used in connection with the "green mom co." logo to distinguish an online store offering eco-friendly products.

However, "greenwashing," which carries a negative connotation, can develop from green branding.

Greenwashing is making untrue, deceptive, or unsupported claims about how environmentally friendly certain goods, practices, or services are. The environmentalist Jay Westervelt is credited with coining the phrase as early as 1986.

LEGAL ASPECTS

The laws governing advertising and business practices may have legal repercussions for greenwashing practices. This article first focuses on the regulations governing deceptive advertising and practices in the European Union and a comparable system in the United States. The law's provisions for issuing green trademarks in various jurisdictions will be examined next.

The Legal System in the E.U.

The primary general legislation that applies to deceptive advertising and other unfair practices in the E.U. is Directive 2005/29/E.C. on unfair commercial practices (the UCPD). It covers all business-to-consumer (B2C) marketing strategies, including environmental claims. The following are the main principles of this law:

• The guiding idea is that everything that could influence how customers behave economically is against the UCPD. This is especially true when an item or service seller makes untrue, murky, or unsupported claims. Any such claims would qualify the trader's actions as misleading;
• The standard for determining whether a practice is misleading is to determine whether an ideal or average consumer of the good or service category would be persuaded to make a purchase decision that they otherwise would not have made;
• With particular regard to environmental issues, 2014 research by the E.U. Commission offers recommendations on how businesses might defend themselves against claims of unfair business practices. Environmental claims should be stated in a way that avoids ambiguity and incompleteness and is factually accurate. Here are some examples of advice:

1. The claim and any environmental benefits should be proportionate. Environmental claims shouldn't exaggerate the positive effects that products have on the environment or imply that there are no adverse effects at all;
2. Traders shouldn't use ambiguous or general terms like "eco-friendly," "harmless," "natural," or "sustainable" because they may mislead customers;
3. There should be a clear connection between the environmental benefits of a product and the relevant claim;
4. The use of visual or audio/musical elements must be proportional to the ecological claims and supporting data. Nature-inspired features must provide a good impression about how environmentally friendly the commodity or service is. According to reports, for instance, the Swedish sectorial guidelines on environmental claims for cars go a step further and state that "green images" like those with leaves, trees, or vegetation should not be used unless there is a pertinent connection to the claim; and
5. Consumers' environmental concerns should be used wisely. The Norwegian standards, for instance, forbid using environmental claims that emotionally appeal to consumers' consciences (such as "think about the polar bear"). Overly technical terms should be avoided in favor of clear and precise terminology.

Any claim regarding the environment must be supported by data or evidence obtained using accepted techniques or sufficiently reliable processes, according to an underlying principle of E.U. law. Traders are required to present such proof.

A Look at the United States

Because of the various levels of regulation, the legal system in the United States is structurally more complex (federal vs. state law). An accusation of "greenwashing" may be made in three ways: (3) by a state law claim for false advertising or another related theory of liability. (4) by a Federal Trade Commission (FTC) or state attorney general public enforcement action. (5) by an unfair competition/false advertising claim under the Lanham Act and other pertinent federal laws.

The E.U. legal system previously outlined is primarily mirrored in the U.S. laws' substantive content. Any false case in either region may result in the imposition of hefty fines as its conclusion. This can happen in the United States when a government enforcement body initiates a lawsuit like the FTC or after a court ruling awarding damages following a case involving a deceptive claim. Like the E.U., the FTC has released "Green Guidelines" (guides for the use of environmental marketing claims) since 1992. The advice is intended to assist marketers in avoiding consumer fraud, particularly by reserving judgment on the company's environmental promises. Additionally, it thoroughly explains the "does and don'ts" that apply to the most common ecological claims.

The Green Guides provide crucial guidance regarding broad claims of environmental benefit. Such general statements are frequently used in connection with trademarks, such as "eco-friendly" or "zero-impact." The Green Guides caution marketers to avoid making unqualified broad claims because they will probably be viewed as deceptive since "it is doubtful that marketers can substantiate all reasonable interpretations of these claims," much like the advice given in the E.U.

Green Brands and Trademark Laws

Companies may violate the law against misleading practices when making eco-friendly claims, especially when the green suit is ingrained in the trademark. Trademarks typically need to be brief to maintain their communicative effectiveness. Extensive qualification of a green claim suggested in a mark is not practical. As a result, trademarks risk having their registration applications rejected by the Trademark Office or being later revoked for misleadingness in both the E.U. and the U.S. Due to the misleading nature of the green claims they contained, the author has been unable to locate any instances of registered trademarks being revoked in the E.U. or the U.S. Instead, there are numerous instances where green trademark applications have been rejected in certain jurisdictions due to descriptiveness.

On the surface, the descriptiveness of trademarks is simpler for Trademark Offices to uncover than deception. The latter assumes either actual deception or a significant risk that the consumer will be duped. Elizabeth Emanuel was the subject of a Court of Justice decision dated March 30, 2006, in case C-259/04. As a result, it mandates that the Office conduct a factual investigation into the details of the actual goods or services to which the trademark may be applied. Instead, determining descriptiveness is primarily a linguistic exercise. To determine whether a word would be intended as a designation of the quality or other characteristics of a good or service rather than as a clue to its commercial origin, the Trademark Office must concentrate on the word's standard dictionary meaning.

Because they lack distinctiveness, most trademarks that allude to environmental characteristics of the goods or services they identify are generally refused registration by both the E.U. and the U.S. Trademark Offices. The trademark CARBON NEGATIVE FIBER (serial number 88634968) was recently applied for in the United States to distinguish natural fibers used as reinforcements and fillers in composite materials used in producing various industrial and consumer goods in Class 22. In that instance, the examiner issued a preliminary denial because the claim was too descriptive, stating: "In this example, both the individual components and the composite result are descriptive of applicant's goods and/or services... The phrase "CARBON NEGATIVE FIBER" alerts customers explicitly that the cited fiber products have the net effect of eliminating carbon dioxide from the atmosphere, i.e., they are made of fiber that is carbon negative.

Additionally, "terms merely denoting a particularly positive or appealing quality or function of the goods and services should be refused if applied for either alone or in combination with descriptive terms," according to the E.U. Intellectual Property Office Guidelines for Examination of European Union Trade Marks (EUIPO Guidelines). Examples of descriptive phrases are given in the EUIPO Guidelines, such as "eco" for "ecological" and "green" for "environmentally friendly." Numerous examples of generic green trademark applications being rejected in the case law (such as EcoTrend ECOLAB, EcoPerfect, EcoDoor, EcoPro, EcoTherm, EcoTech, EcoPreform, and EcoFinishes).

Even more intricate green catchphrases would not be accepted as trademarks by the Trademark Office. The trademark applications for the hashtags "#savetheocean" or "Save our Earth Now," denied registration for lack of distinctiveness, are examples of case law precedent. The reason for rejection in both instances was that the sign's immediate recognition and perception by the relevant target consumer as a laudatory promotional expression, indicating that the products represent an environmentally friendly alternative to other, similar goods rather than a sign of commercial origin, were the bases for the refusals.

Conclusions and Recommendations

There is some skepticism concerning green trademarks in trademark office procedures in the E.U. and the U.S. While avoiding the monopolization of normal language; there may be more room for the usage of terminology and imagery that are suggestive of the green culture underlying a brand. Brand owners should be mindful of breaking laws on unfair trading practices and misleading advertising due to the message delivered by the brand itself or its usage, excluding specific prescriptions in trademark law.

It is advised to avoid the following to avoid engaging in greenwashing:

• Use your creativity when creating neologisms that could convey environmental information to consumers without explicitly using well-known "green" phrases. Marks like ENVIROSURE, SUSTAINABILITY, REUSIFICATION, and GEOFILE are examples.
• Adhere to the maxim "demonstrable, transparent, clear" whenever green claims are made. Avoid making generalized, ambiguous, or too "green" environmental claims.

The recommendations mentioned above should assist trademark owners in avoiding the obstacle to the trademark registry in the E.U. and the U.S. Expect to have your registration request denied if a product or service exhibits any overtly green characteristics. The suggestions should also assist in preventing deception as yet another unassailable justification for rejecting trademarks that are dishonest about their environmental promise or, if registration is granted, for its eventual cancellation.