The Future Is Green: IP And Marketing Considerations For Sustainable Fashion Brands – Trademark
To print this article, all you need is to be registered or login on Mondaq.com.
The early 21st century saw the seemingly inexorable rise
of both online retail and fast fashion. Yet, recent years, as the
climate crisis has deepened, have seen a challenge to this approach
as consumers, retailers and fashion houses seek to put green
credentials and sustainability at the forefront of their respective
priorities.
The rise of ‘green fashion’ has seen:
- A resurgence in purchasing clothes from charity shops and
vintage stores; - The launch of platforms for selling and recycling
‘pre-loved’ clothes, such as Vinted and Depop; - The release of eco-friendly ranges at high street retailers,
with H&M notably both launching their ‘conscious’
collection in 2010 and devising the Garment Collecting initiative,
making H&M the first fashion company to collect old textiles
in-store for recycling; - High street fashion brands focussing on the longevity,
resilience and style (rather than just fashion) of its products;
and - the rise of clothes rental services, with Hurr Fashion becoming
the UK’s first peer-to-peer wardrobe rental platform.
Fashion brands/platforms have also been entering into
collaborations with the aim of increasing awareness of and demand
for sustainable fashion products. eBay has recently partnered with
reality TV show, Love Island, with the aim of promoting recycled
clothing to a younger audience.
And the focus on sustainability has not just been marketing;
some fashion businesses have even been successful in obtaining B
Corp certification, a designation which recognises high standards
of environmental (and social) performance, transparency and
accountability. Chloé was the first luxury fashion house to
be B Corp accredited in 2021.
IP AND MARKETING CONSIDERATIONS
Movements and innovations in this ‘green’ approach
have inevitably been reflected in the intellectual property rights
players in the fashion sector use to protect their respective
businesses – be it patents and trade secrets which protect new
sustainable manufacturing processes, design protection for
eco-friendly packaging for clothing or trade marks which evoke
environmentally friendly products, services, or practises. Indeed,
there has been a noticeable upsurge in ‘green’ trade
mark applications in recent years.1 It is, however,
worth noting that applications for
marks that clearly communicate environmental claims, such as
calling a product green or eco-friendly, may be refused, on the
grounds of being laudatory or descriptive of the product’s
environmental qualities.
As companies seek to demonstrate their commitment to
sustainability, some overstep the line. ‘Greenwashing’
is the term coined for making unsubstantiated claims which deceive
members of the public into believing that products are
environmentally friendly or sustainable. An example is describing a
polyester product as “recyclable” when the material
and/or the laminations and finishings applied cannot be reused
again at end of life. Greenwashing does not strictly fall within
the realms of IP, but marketing strategies and brand protection are
closely related. In fact, there is a risk of greenwashing when
filing ‘green’ trade marks. Another basis upon which
marks may be rejected is if, upon initial examination, the mark is
considered to be deceptive, in that it has the potential to mislead
consumers as to product quality or impact. However, this ground is
sometimes overlooked. Other times, it may be possible to overcome
such an objection by limiting the goods and services claimed only
to those which possess the characteristic suggested by the trade
mark, though the Trade Marks Office would not itself verify whether
this is truly the case before accepting the mark for registration
(and, if the term in question is not regulated, such a limitation
may not be very effective).
Greenwashing is not a new phenomenon but has become much more
common as public consciousness has changed. Whilst there is no law
governing greenwashing in the UK, clear rules and guidance have
been developed which apply to UK businesses – these
include:
- The Green Claims Code and accompanying
guidance,2 published by the Competition and Markets
Authority (CMA) in 2021. - The Advertising Standards Agency (ASA)’s advertising
guidance on misleading environmental claims and social
responsibility, released in June 2022.3 The
guidance aids the interpretation of the CAP Code (the rule book on
non-broadcasting advertisement) already in place, which cover
environmental claims.4
Examples of misleading behaviour, as summarised in the
CMA’s guidance, include exaggerating the positive
environmental impact of a product or service and falsely implying
items are eco-friendly through packaging and logos.
It is also worth noting that the European Commission, last year,
proposed amendments to the Unfair Commercial Practices Directive
and the Consumer Rights Directive to address greenwashing and the
need to protect consumers against unfair practices and better
information.5
The increased practice of greenwashing is not going unnoticed by
authorities. Online retail giants, ASOS and boohoo, were
investigated by the CMA in 2022 for greenwashing. Across the pond,
a consumer class action has been brought against H&M for
greenwashing, in relation to its Conscious Collection mentioned
above.
When making ‘green’ claims (including via
‘green’ trade marks), careful consideration should be
given to how the language adopted may be interpreted by consumers,
the overall impression it creates and the ability to substantiate
any claim made. When making general sustainability claims, such as
that the product is ‘eco’, it is important to explain
in what way and how this is measured and assessed. It is clear that
you do not need to intend to mislead consumers
to be found non-compliant, therefore capturing inadvertent
greenwashing.
Being awarded B Corp accreditation does not guarantee that a
business will not be found to have gone too far – it does not in
itself prevent a business from exaggerating their efforts to reduce
environmental impact. Indeed, inaccuracies in the data reported
when applying for accreditation would be a pernicious form of
greenwashing.
WHAT CAN WE EXPECT IN 2023?
In short, more of the same. Brands that are yet to move into
sustainable fashion may feel that, in order to stay competitive,
they must now do so. We can expect more and more innovation and
creativity as fashion businesses seek to develop sustainable
materials and business models to capitalise on the boom in the
green economy. More sophisticated businesses will want to recoup
the costs and reap the rewards associated with investing in more
sustainable business methods and materials by obtaining IP and
charging customers higher prices. A strong marketing campaign is
key to drawing in demand for new brands.
On the other hand, in the ‘consumer age’, we can
expect the authorities to be keeping a close eye on greenwashing in
the industry, with the aim of reducing misinformation. The
ASA and CMA are set to increase investigations and enforcement
action in relation to greenwashing, particularly against
brands who are attempting to move away from the ‘fast
fashion’ label by making unsubstantiated claims to
sustainability.
Green is certainly the new black, and carefully considered IP
strategies and advertising campaigns will be increasingly important
when entering into the market of sustainable fashion.
Footnotes
1
CITMA – EUIPO finds huge rise in ‘green’ trade
marks
3
CAP-guidance-on-misleading-environmental-claims-and-social-responsibility.pdf
(asa.org.uk)
4
11 Environmental claims – ASA | CAP
5
EUR-Lex – 52022PC0143 – EN – EUR-Lex (europa.eu)
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
