Sustainable fashion: do “green” trademarks actually communicate CSR commitments or just provide misleading information?

As public interest in sustainable fashion is rapidly surging, trademarks are playing an important role in promoting eco-friendly products and engendering consumer trust.

For instance, PRADA registered the trademark “Re-Nylon” to signal its collection based on the regenerated-nylon yarn ECONYL®, while the fast-fashion giants H&M and ZARA registered the trademark “Conscious” and “JOIN LIFE” respectively, to identify products made with recycled or organic materials, which ultimately reduce environmental impact.

Thus, it seems apparent that trademarks are increasingly being used as a tool to provide information that enables consumers not only to identify the origin of the goods but also to select products reflecting their values. However, with limited transparency and lax regulation, consumers struggle to differentiate between sustainable and “greenwashed” products – namely, goods promoted as part of environmental initiatives, without the implementation of business practices that actually minimize the environmental impact or any of the other negative effects along a product lifecycle.

Despite market pressures for increased scrutiny for greenwashing, in current circumstances, IP offices are only called to scrutinize the fulfillment of conditions for trademark registration, which are essentially: distinctiveness, no deceptive or immoral character, and – in the USA – intent to use in the market. Yet, although words that allude to or hint at sustainability may be registered as a trademark, the line between protectable and unprotectable terms is not always clear.

The USPTO has shown a reluctant approach toward “green” trademarks, refusing to register some of them based on the ground that they were either generic or merely descriptive. Examples in the fashion domain include “ZERO WASTE TEE” and “SUSTAINABLE SCHOOLWEAR”. In addition, it also refused to register common terms or phrases that fail to function as trademarks, such as “LET'S BUILD A SUSTAINABLE FUTURE” and “NO WASTE” in Class 25.

In Europe, EUIPO refused the registration of trademarks such as “NATURAL LOOK” or “SLOW CLOTHES” under Article 7(1)(b) CTMR, being the trademarks devoid of any distinctive character. A similar reasoning was put forward by the Court of Justice of the European Union, that refused registration for lack of distinctiveness of the trademark “EcoPerfect” (ECJ, T-328/11 - Leifheit v OHIM (EcoPerfect), 24 April 2012, T-328-11), provided that the word “eco” has a “concrete meaning known to the relevant public and relates to ecological aspects”. Still, trademarks as “SLOW NATURE” or “GREENLIGHT ECO FASHION” have been granted registration.

In any event, as IP offices are not meant to distinguish between verified and unsubstantiated claims, expressed through trademarks, it is left to companies’ responsibility to be cautious when selecting terms that allude to or hint at sustainability.

To avoid reputational harm – and legal implications, such as the rebuke to H&M “Conscious” collection by the Norwegian Consumer Authority for greenwashing –, it is recommendable not only to avoid choosing common phrases or terms that plainly recall a products’ sustainable nature but also to pair branding efforts with achievable goals and transparent messaging.

* This article is derived from a broader research presented at the Global Fashion Conference 2020. Further information can be found at: http://gfc-conference.eu/.