Trade marks going green

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. The trend only seems set to grow with sustainability growing as a priority among young consumers.

Brands in return are understandably keen to target such consumers and promote the perceived positive qualities of 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.

Defining greenwashing

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. Inspired (and seemingly annoyed) by one particular hotel stay, he proposed the movement allowed hotels to claim to be using less water and saving the planet, but in reality made a minimal difference in water use and the only saving was on laundry costs.
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 this made clear in fine print, it might still be considered misleading advertising if not immediately obvious to consumers.

What guidance is there for brands?

Greenwashing allegations are also high on the agenda for regulators. 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 those made recently by ASOS, Boohoo and Asda, with the CMA indicating it will be stepping up enforcement efforts.

This is relevant, as misleading, overexaggerated or unsubstantiated environmental advertising in the UK is prohibited under consumer protection law and misleading advertising regulations.

This increased scrutiny clearly makes it a difficult balance for brands to strike between being seen to be responsive and promoting positive sustainability changes.

The following guiding principles, taken from published ASA rulings and guidance, should assist with effective green marketing campaigns that avoid greenwashing claims.

• Consider the overall impression of an advert

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 focus will be on the overall impression for the consumer.

Examples could be green colours and images of plants, trees or clear running water, which could give an overall impression of a positive environmental impact when this might not be the case.

• Consider going specific with claims

Broad, general or vague claims will in general be more difficult to substantiate. Whereas a more limited, specific claim is usually 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. This will be difficult for many brands to prove, with all products having some kind of environmental impact. The basis of the comparison must also be fully substantiated, and broad claims are assumed to be based on the full life cycle of the advertised product and its components unless stated otherwise.
– 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 to be misleading as not every component was 100% recycled (ASA Ruling on Pepsi Lipton International 19 January 2022).

A key principle throughout the rulings is that any environmental claim has to be backed up by evidence or data, such as a supporting study noting positive environmental impact.

Promote 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.

Apply to 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.

Applications can be made directly to the owner of each certification mark and so long as a product meets their criteria, use of the mark will be allowed. A fee may apply.
– 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 considered 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.

The UK IP Office will also refuse applications for trade marks that are directly or obviously descriptive in relation to environmentally friendly qualities. 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. Until then these recommendations and the guidance issued by the CMA should help brands navigate this developing area.

This article was prepared by HGF’s Trade Mark Attorney Emma Pallister.