Combatting greenwashing – existing toolkit, EU developments and the role of trade marks

“Greenwashing” is a clear buzzword in the UK and EU. Greenwashing is the use of false, misleading, or unsubstantiated claims about the environmental friendliness of products, services, or practices. The term was coined by Jay Westerveld (an environmentalist) in 1986 but has received increased attention from regulators in recent years.

Lately, efforts to market environmentally sustainable business practices have led to an increase in “green” trade mark applications. In February 2023, the EU trade mark office published an update to its Green EUTM report, noting a significant increase in both the absolute number and overall share of EU trade mark filings that include “green” words, such as “recycling”. However, it is difficult to verify whether these claims of sustainability are accurate.

Existing toolkit and EU developments

In 2021, the UK Competition and Markets Authority (“CMA”) produced a Green Claims Code, in the form of guidance for businesses making environmental claims. Earlier this year, the CMA announced that it would analyse the accuracy of environmental claims made about essential household products, and in June the UK Advertising Standards Authority (“ASA”) published guidance for businesses for making “green” claims accurately (see our post here).

The EU is also putting safeguards in place. In March 2023, the European Commission adopted a proposal for a Directive on making “green” claims (see our blog posts here and here), with a view  to effectively banning greenwashing and tackling early obsolescence of products. The planned new rules also include the introduction of new consumer rights intended to enhance the durability and reparability of products (see our blog post here). The new “Green Claims Directive” would complement the existing framework on unfair commercial practices and would introduce a set of minimum criteria for the substantiation of green claims and an independent verification mechanism to confirm compliance with these criteria.

The proposal also includes strict requirements regarding the establishment and use of environmental labels, effectively limiting the proliferation of such labels and developing verification requirements at EU level for the single market.

With the available and upcoming toolkit to combat greenwashing, it is easy to overlook that trade mark law may also be useful in safeguarding against greenwashing. Further, businesses may apply to use green “certification marks” to convey trusted eco-credentials to their consumers.

Trade marks – the green and the greenwashed

In the literal sense, trade marks serve as the visual pinpoint for a brand and are the repositories for the meanings and feelings associated with the brand. Given this communicative power, businesses may use their trade marks to convey the message to their customers that their brands represent sustainable values.

However, trade marks containing green imagery and wording may lack legitimacy, as consumers cannot verify the truth associated with the green claims made by trade mark proprietors. To this end, the EU’s future “Green Claims Directive” may prevent trade mark proprietors from registering marks that make unsubstantiated “green” claims.

The present trade mark system itself can be used to filter out misleading “green” trade marks. “Green” trade marks may be refused registration (Section 3 UK Trade Marks Act, 1994 (“UK TMA”) and Article 7 EU Trade Mark Regulation, 2017 (“EU TMR”)) or subsequently declared invalid and removed from the trade mark register (Section 47 UK TMA and Article 59 EU TMR), for:

• being purely descriptive (for example, being pre-fixed by “eco” and “green”);
• lacking distinctiveness (for example, by using green imagery);
• being deceptive and made in bad faith; or
• being contrary to public policy or for being contrary to law (for example, consumer protection law or, in future, the “Green Claims Directive”).

Certification marks

Certification marks (such as “Fairtrade” and “Woolmark”), guarantee that the goods or services bearing the mark meet certain objectively verified criteria, rather than performing the traditional trade mark function of guaranteeing the origin of the good or service bearing the mark. Users of such marks must comply with certain minimum “standards”.

Certification marks are permitted under Section 50 UK TMA and Article 83 EU TMR. Applicants for certification marks are often trade associations or similar bodies with an interest in maintaining certain standards (see here). When applying to register a certification mark, the applicant must include “regulations” which users of the mark must comply with. While the requirements differ slightly for UK certification mark regulations (as set out in Schedule 2 UK TMA) and EU certification mark regulations (Article 84 EU TMR and the guidance published thereunder), the regulations must broadly include:

• a statement regarding who is authorised to use the certification mark (most certification marks may be used by any person whose goods or services demonstrate the relevant characteristic that the mark certifies);
• details of the characteristics of the goods or services that are certified by the mark;
• the conditions for use of the certification mark; and
• the testing and supervision measures to be applied by the certifying body.

The regulations governing a certification mark are publicly accessible. This allows users of the certification marks to find out the standards they should meet in order to use the certification marks, and the public to independently verify the characteristics that the certification mark represents. Suppliers of the goods and services that are allowed to use a certification mark are not permitted to own the relevant certification mark (thereby avoiding the risk of self-certification), and the proprietor of a certification mark must be competent to certify the goods and services for which the mark is to be registered for the certification mark to be registered. As such, certification marks are a legitimate tool for businesses to signal genuine, certified “greenness” to consumers.

The UK TMA’s provisions regarding infringement of certification marks further support the usefulness of the certification regime as a tool to combat greenwashing (Schedule 2 UK TMA). Authorised users of certification marks are entitled to bring infringement proceedings in their own name, without requesting the proprietor’s permission. The grounds for infringement of a certification mark are the same as for a regular trade mark. Therefore, any authorised user of the mark may bring proceedings against an infringer business that is not authorised to use the certification mark in question. This prevents non-certified businesses from claiming that qualities associated with the certified mark. The same does not apply for EU certification marks and authorised users must be specifically authorised by the trade mark proprietor to bring infringement proceedings in respect of EU certification marks (Article 90 EU TMR).

Certification marks can be revoked where a proprietor does not take sufficient steps to ensure compliant use of the certification mark with the regulations governing use of the certification mark (Schedule 2 UK TMA, Article 91 EU TMR). In light of this, proprietors of certification trade marks need to have robust processes in place  (i) at the outset in relation to the grant of right to use certification marks; and (ii) throughout the life of the trade mark, to monitor compliant use.

The certification regime therefore offers an objectively verifiable and reliable process for businesses to use trade marks to signal that they are committed to environmental sustainability. It also allows consumers to trust that the signals that businesses are sending are legitimate. In light of the new “Green Claims Directive” and stricter regulation on environmental claims-related labelling and certification schemes, it can be expected that trade mark offices will look closely at whether certification marks fulfil all requirements at the application stage – in particular if regulations are detailed enough to ensure meaningful use of any green certification – as well as during invalidity proceedings.