Trade marks going green – Lexology

How brands can engage in ‘green marketing’ while avoiding claims of “greenwashing”

Due to rising public awareness of climate change and environmental issues, consumers are increasingly making purchase decisions based on the eco-friendly or ‘green’ credentials of products and services, and aligning brand values. With sustainability becoming a more important priority for young consumers, this trend seems to be only growing.

This is why brands, naturally, are keen to reach these consumers and highlight the positive aspects of their products. However, in many cases this has led to public backlash and allegations of “greenwashing.” It’s not just fast fashion either, with businesses across multiple sectors from finance to food and drink being implicated.

Greenwashing: What is it?

It’s regularly featured in headlines, but what exactly is “greenwashing”? Defined as “the creation or propagation of an unfounded or misleading environmentalist image”, greenwashing is, essentially: marketing that gives an exaggerated impression that a business, product or service better for the environment than it really is, or is less damaging than a competitor’s offering.

The term was originally coined in 1986 in an essay by environmentalist Jay Westerveld on the “save the towel” movement in hotels. He was inspired by an incident in a hotel and became annoyed. In a more modern example, a fashion brand might market a particular clothing range as “sustainable” or “recycled”, but: – This term only applies to some of the garments in the range, or; – Only 50% of a garment is made from sustainable or recycled material.

Even if the information is in clear print, it could still be misleading advertising even if it’s not immediately obvious to consumers.

What guidelines are there for brands?

The regulators are also focused on greenwashing allegations. The Advertising Standards Agency (ASA) has been processing complaints of misleading sustainable advertising, and the Competition and Markets Authority (CMA) is conducting a review into ‘green’ claims. This includes claims made by ASOS and Boohoo recently. The CMA has indicated that it will increase enforcement efforts.

This is pertinent, since misleading, overexaggerated and unsubstantiated environment advertising in the UK is banned under consumer protection laws and misleading advertising regulations.

It is difficult for brands to find the right balance between being responsive and encouraging positive sustainability changes.

These guiding principles are based on published ASA guidance and rulings. They can be used to help you create effective green marketing campaigns.

• Think about the overall impression an advertisement makes

Greenwashing allegations typically arise from the use of general words such as “sustainable”, “natural” or “eco-friendly”, but can also include branding imagery like symbols or colours, or the messages contained within songs. The overall impression of the consumer will be the focus.

You could use images or colors that depict plants, trees, and clear water to give the impression of an environmental positive impact.

• You might consider being specific when it comes to claims

It will be harder to prove broad, vague or general claims. While a specific and more narrow claim is easier to prove, it’s usually more verifiable.

For example, the ASA has stated that if a product is advertised as being “greener” or “friendlier” it should provide a net environmental benefit over the previous version of the product or a competitor’s. It will be difficult to prove this for many brands, as all products have some environmental impact. If the claim is to be valid, the basis must be fully supported. Broad claims should be based on the entire life cycle of the product and all its components. – Example: A Lipton Ice Tea bus shelter poster featured headline text that stated, ‘Deliciously Refreshing, 100% recycled*’ with the asterisk leading to small text at the bottom of the poster that stated, ‘Bottle made from recycled plastic, excludes cap and label.’. This was found misleading because not all components of the product were 100% recycled (ASA Ruling Pepsi Lipton International 19/01/2022).

The rulings are based on the principle that any environmental claim must be supported by data or evidence, such as supporting studies demonstrating positive environmental impacts.

Encourage initiatives

Consider focusing more on the environmental initiatives of a brand rather than general ‘green’ messaging. Recent examples making the headlines include the new clothing rental services launched by major retailers John Lewis, M&S, Flannels and Selfridges to encourage circularity and reduce customer costs.

Use certification trade marks

Certification trade marks are a clear and established way of indicating to consumers that the products meet certain standards, for example: – The Red Tractor label, which provides quality assurance for farm food products. – The Fairtrade Mark, a guarantee that a product has been produced using fair labour. – The Vegan Mark certifies that a product is free from animal ingredients. – B-Corp Certification, for businesses rather than products themselves, certifies that the business is compliant with high ethical and environmental standards.

You can apply directly to the owner of each certification marking. As long as the product meets their requirements, the mark will be granted. There may be a fee. – Example: A Quorn ad that focused on the reduced carbon footprint, land and water usage from Quorn products compared to meat, was able to be backed up by research and Quorn holding a Carbon Trust Footprint certification demonstrated a commitment to reducing carbon footprint. The ad was not misleading (ASA Ruling on Marlow Foods Ltd 30, October 2019).

Avoid deceptive or descriptive trade marks

Trade mark registrations can later become open to revocation if used in a “deceptive” way. Case law examples include ORWOOLA or “pure whool” used for 100% synthetic material.

Trade marks that directly or clearly refer to environmental friendly qualities will be rejected by the UK IP Office. For example, EcoTherm or EcoTech, “eco” being accepted shorthand for “ecological.” Pair descriptive terms with other words or create a neologism for a distinctive and registrable trade mark that still communicates a positive environmental message without being too general.

There has been talk of possible changes in UK competition and consumer law to support the UK’s sustainability goals. These recommendations and the CMA’s guidance should be helpful for brands to navigate this area.