Introduction
Green Trademarks, also known as eco-friendly marks, are growing in the recent times for promoting the preservation of environment and sustainable development. These marks highly discourage any act which may lead to pollution, or which may harm the environment in any manner possible. Earth Choice by Domtar Paper is one of the few examples of eco friendly products. Recently, various countries have started producing eco-friendly products for minimal pollution. Green trademarks are eligible for registration under trademark as they can be graphically represented and have goods and services which can be distinguished from other registered marks. Green marks used by companies give them a way of advertising and promising consumers to provide 100% organic and biodegradable products which are free from causing any harm to the environment.
When a company provides false or misleading information about their products being eco-friendly, it is known as Greenwashing. It is done with the aim of deceiving the consumers by promoting false information.
Currently, India has two popular Green Marks, which are Godrej and Nestle. Godrej is read as Good and Green which shows their commitment towards making India pollution free and greener. Nestle on the other hand in, 2018, promised that their products will be 100% recyclable and reusable by 2025. Brazil Unilever and Walmart have built sustainable houses within the stores made from recycled products. Though this is one of the major steps taken by them however, the countries have not recognised green marks.
There are only few countries which recognise Green Marks as a trademark. EU, USA and China are the countries who have recognised Green Trademarks. However, India recognises Green Marks as certification marks.
Certification marks are unique marks, indicating that the product satisfies the criteria as per the examination done by the authorised body, under which the material, origin, mode of manufacturing, quality and accuracy of the product is examined.[1]
Wherein, a trademark is a mark which is capable of being represented graphically and capable of distinguishing the goods and services. These are words, symbol, logo, phrase, colour combination, shape of goods that is a unique identification of a corporate body.[2]
Status in EU
EU has recognised Green Trademarks in full capacity and has various companies which have acquired green trademark. However, one of the major drawback is the practice of greenwashing which has been seen in EU several times. Greenwashing is a practice of providing misleading information and advertising their product in a manner that consumers are persuaded to purchase their products.
The EU’s Directive on Unfair Commercial Trade Practice[3] is the main legislation which is enforced to regulate the practice of greenwashing.
- The UCPD states that any advertising which disrupts the consumer behaviours by providing information which is false or ambiguous is contrary to the directive.
- Further, to test greenwashing, the authorities check if the advertising is misleading, to determine the same, it is seen if the advertisement can persuade an average consumer to purchase the product.
The EU Commission in 2014, released guidance for traders to improve their trade practices. The study stated that:
- The claim should be in proportion to the environmental benefits and should not have a negative impact. However, there should be a direct link between the
- Without authorisation the trader should not use phrases and pictures which indicate the product to be environment friendly.
- Consumers concerns regarding the environment should not be abused.
Status in USA
The USA regulates greenwashing in three avenues:
- Under The Lanham Act, which talks about unfair competition and false advertising
- By the Federal Trade Commission or the general public enforcement action which is taken by the attorney general.
- Through the Theory of Liability for false advertising which is claimed under the state laws.
Similar to the guidance which was released by the EU, the Federal Trade Commission also published the green guidelines in 1992[4] which were issued to regulate greenwashing and green trademarks. It was published for the traders to avoid consumer deception and give directions about the general claim of environment benefits.
Status in India
In India, Green Marks are recognised as certification marks, namely, ‘Ecomark’ which are issued by the Bureau of Indian Standards. Under ecomark scheme, the products which are included are soap, detergent, food items, electronic goods, plastic products, cosmetics and any other packaged item and ‘GreenPro’ issues by the Confederation of Indian Industry, the mark indicates that the product is environment friendly.
Analysis
In many countries Green Marks are registered as trademarks. However, in India they are covered under the heading of certification marks. Certification marks are marks which indicate the quality of the product. There are various certification marks for different items, which include Green Marks as well.
Green Marks should be considered as certification marks and not trademarks, as they do not satisfy the criteria. Though, Green Marks can be graphically represented, one of the essentials of trademarks is that it should not be descriptive in nature, however, to indicate that a mark is an eco-friendly mark words like ‘eco’ and ‘green’ are likely to be used. Further the words which indicate the nature are generic words which cannot be registered as per Section 9 of the Act.[5] Therefore, it is difficult for Green Marks to be registered as trademarks. China which initially recognised green trademarks is now refraining from registering green trademarks as almost all the applications either have the words ‘eco’ or ‘green’ in their name.
If a green mark is registered as a trademark, it would increase the instances of greenwashing as seen in the countries where green trademarks are recognised.
Conclusion
Green Marks plays a significant role in environment protection and has become the need of the hour. Though Green Marks cannot be recognised as a trademark in India, due to the descriptive nature of the words used for the products, it can be registered as certification mark, as it indicates the quality of the product through which the consumers rely on the company and are persuaded to buy the products which are eco-friendly[6] and promote sustainable development.
[1] The Trademarks Act, 1999, Sec. 2(e).
[2] The Trademarks Act, 1999, Sec 2(zb).
[3] Unfair Commercial Practice Directive, 2005.
[4] Green Guidance by Federal Trade Commission https://www.ftc.gov/news-events/topics/truth-advertising/green-guides .
[5] The Trademark Act, 1999, Sec. 9.
[6] Kathryn Park, ‘Green Trademark and the risks of green washing’, WIPO Magazine, December 2022. https://www.wipo.int/wipo_magazine/en/2022/04/article_0006.html .
Author – Ketan Joshi
Associates
Co-Author – Avantika Singh
Intern
