Maximizing 'Green' Brand Exposure and Minimizing Perceptions of Greenwashing

• Author: Maureen Beacom Gorman, Esq.
• Profession: Marshall, Gerstein & Borun LLP
• Pages: 263-289

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CHAPTER 15

Maximizing ‘‘Green’’ Brand Exposure

and Minimizing Perceptions

of Greenwashing

Maureen Beacom Gorman, Esq.

Marshall, Gerstein & Borun LLP

The United States is going green and companies that do not ‘‘go green’’ are lag-

ging behind consumer demand,

1

behind governmental policy,

2

and, perhaps,

behind the times.

3

However, many companies claiming to have already ‘‘gone

green,’’ including some reputable mainstream companies, have been accused of

overstating or misstating their ‘‘greenness.’’

4

In fact, TerraChoice Environmental Mar-

keting Inc.,

5

in its now famous survey of green marketing claims, after analyzing

1,753 environmental claims on 1,018 products and testing the claims against current

best practices in environmental marketing,

6

found that all but one of the 1,018 prod-

ucts surveyed in 2007 made false or potentially misleading claims to the targeted con-

sumer.

7

In 2009, TerraChoice’s survey in the United States and Canada found of the

4,996 green claims on 2,219 products, 98 percent of them were false or misleading.

8

The act of ‘‘misleading consumers regarding the environm ental practices of a com-

pany or the environmental benefits of a product or service’’ has come to be known

as greenwashing.

9

This chapter serves as a guide to the trademark practitioner in the ‘‘green’’ issues

arising in the current market. Specifically, it attempts to address some of the most

pertinent legal issues in green branding and the legal pitfalls of greenwashing by

discussing issues in green branding, competitor-initiated allegations (litigation) of

greenwashing, and identifying some of the various government policies and agency

rules that affect environmental marketing.

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Green Branding

In 2008, the United States Patent and Trademark Office (USPTO) received more than

3,200 filings for marks containing the word green, an increase of 32 percent over

2007 filings.

10

Eco-prefix and enviro-prefix marks increased 86 percent (to more than

1,700 filings) and 22 percent (to more than 500), respectively.

11

Filings containing the

word clean ‘‘to suggest environmental friendliness’’ increased 30 percent (to more

than 1,000 filings).

12

The evidence suggests that green marketing is not simply a fad,

‘‘but rather a strategic i nitiative.’’

13

However, as the TerraCh oice report suggests,

14

applying a ‘‘green sheen’’ without greenwashing is challenging.

The Federal Trade Commission’s Restrictions on Green Brand Selection

The trademark practitioner’s first resource when analyzing green branding issues is

somewhat surprisingly not the USPTO’s ‘‘go-to’’ source, the Trademark Manual of

Examining Procedure (TMEP), but rather the Federal Trade Commission (FTC) pol-

icy manuals.

15

The FTC, along with the Environmental Protection Agency (EPA),

issued in 1992, 1996, and most recently in 1998 its policy statements regarding envi-

ronmental marketing claims, commonly referred to as the ‘‘Green Guides.’’

16

The

Green Guides cover:

. . . environmental claims inclu ded in labeling, advertising, promotional mate-

rials and all other forms of marketing, whe ther asserted directly or by implica-

tion, through words, symbols, emblems, logos, depictions, product brand names,

or through any other means, including marketing through digital or electronic

means, such as the Internet or electronic mail. The guides apply to any claim

about the environmental attributes of a product, package, or service in connec-

tion with the sale, offering for sale, or marketing of such product, package, or

service for personal, family, or household use, o r for commercial, institutional,

or industrial use.

17

The Green Guides are not ‘‘enforceable regulations’’ in and of themselves, and

they do not ‘‘preempt regulation of other federal agencies or of state and local bodies

governing the use of environmental marketing claims.’’

18

In this regard, the Green

Guides note that compliance is ‘‘voluntary.’’

19

However, it is voluntary only in the

sense that ‘‘they are intended to aid compliance with Section 5(a) of the FTC Act as

that Act applies to environmental marketing claims,’’ rather than being law them-

selves.

20

Therefore, a voluntary disregard for the Green Guides could nonetheless

lead to an FTC investigation and enforcement under Section 5 of the FTC Act for non-

compliance with federal, state, or local law and environmental claim regulations.

21

Section 5 of the FTC Act, of course, prohibits unfair or deceptive practices, and

provides in pertinent part:

The Commission is hereby empowered and directed to prevent persons, partner-

ships, or corporations . . . from using unfair methods of competition in or affect-

ing commerce and unfair or deceptive acts or practices in or affecting

commerce.

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264 Intellectual Property Operations and Implementation