Quarterly International Ip Law Update

• Citation: Vol. 44 No. 3
• Publication year: 2019
• Author: David Tseng

Quarterly International IP Law Update

David Tseng

Dorsey & Whitney LLP

Mariana Noli

Noli IP Solutions PC

THE GROWTH OF SUSTAINABLE BRANDS AND PROBLEM OF GREENWASHING

As environmental practices have become an important factor in consumer decisions,¹ companies have strived and invested in adapting to this shift in the marketplace. From an IP perspective, trademarks are used to preserve the goodwill generated from eco-friendly practices. Such marks, or "sustainability brands," provide the consumer with an association to eco-friendly products and services. Indeed, more than 90% of corporate CEOs have affirmed that "sustainability" is fundamental for success.²

Building a sustainable brand from environmentally-friendly practices, however, can be a complex endeavor. It requires an investment of time and resources devoted to overseeing supply chains and obtaining certifications while maintaining profitability. Moreover, the trust between the consumer and a sustainability brand can be fragile and easily broken by the failure to abide by the touted environmental standards.

The first half of this article focuses on some sustainability brands around the world and issues in building the respective brands. Generally, sustainability brands can be built by offering goods and services that use sustainable materials through environmentally friendly manufacturing processes. Specific details regarding sustainability processes are necessary to establish the authenticity of a company's environmental claims. Further, many eco-friendly brands also focus on other equitable social issues such as fair labor practices or support for local artisans.

By contrast, the second half of this article focuses on some recent instances of "greenwashing" litigation, a type of consumer-protection litigation where businesses deceive consumers regarding their environmental practices. The examples discussed in this article illustrate how sustainability brands can be used to exploit consumers.

SUSTAINABILITY BRANDS

Australia

Fashion label Ginger & Smart built an eco-friendly brand by providing product descriptions that detail how the garment is made as well as details such as the fabric, certifications, production methods, equipment, features and environmental impact of each garment.

For example, certain garments are made using Tencel fibers, which are purportedly produced from sustainably sourced natural raw material made from wood and produced using environmentally-friendly processes. Other products are advertised to be compliant with the Oeko-Tex 100 Standard. Oeko-Tex provides third-party testing and certification of raw materials used in clothing for banned or harmful substances such as formaldehyde.³

United Kingdom

Birdsong is a clothing label based in the UK that advertises handmade garments made with...