With an increasing number of corporations “going green” with their products, greenwashing seems to be the latest “it” factor for companies to boost their revenue. In this two part post, Dr. Sunanda Bharti explains this phenomenon and suggests ways through which Trademarks Act and other relevant legislations could step in to ensure that the public is not fooled by the blatantly terming their products as “green”. In part I of the post she explains the concepts of greenwashing and green trademarks. Part II of the post focuses on the relevant changes that can be made in the Indian laws to address the issue of greenwashing. Dr. Bharti is a Professor in Law at Delhi University and has written several guest posts for us, which can be viewed here.
[Part I] Going Green as a Garnish—A Brief Analyses of Green Trademarks Situation in India and Related Ethos
By Dr. Sunanda Bharti
The concept of ‘going green’ has gained significant traction in recent years. and this trend has notably extended to the realm of intellectual property, particularly within the trademark (TM) system. Companies worldwide are increasingly projecting that they have embraced ‘green trademarks’ to align their brand identity with so-called eco-friendly values. It is because businesses have realised that linking their trademarks to concepts like sustainability, health, or nature can significantly boost their revenue and attract more customers. This is hinted by the latest INTA (International Trademark Association) Report on the ‘Effect of Greenwashing and Greenhushing on Brand Value. However, in many cases, this is little more than a façade. There is often no reliable mechanism to cross-verify their claims, or if such mechanisms do exist, they remain obscure, rendering their impact negligible. This lack of transparency allows businesses to exploit the ‘green’ label, raising serious concerns about the authenticity of their environmental commitments.
A Bit on Greenwashing
The manipulation of sustainability narratives has been labeled as ‘greenwashing’. This is per the Guidelines issued by the Central Consumer Protection Authority (CCPA) in India. One needs to rely on them because the Trademarks Act, 1999 does not cover greenwashing. The Guidelines specifically define greenwashing as:
‘Any deceptive or misleading practice, which includes concealing, omitting, or hiding relevant information, by exaggerating, making vague, false, or unsubstantiated environmental claims; the use of misleading words, symbols, or imagery; placing emphasis on positive environmental aspects while downplaying or concealing harmful attributes.’
The definition goes on to calrify that obvious hyperbole, puffery, non misleading/non deceptive imagery, etc would not amount to greenwashing.
While these guidelines mark a vital stride toward ensuring accuracy in environmental claims, they are not sufficient in curbing greenwashing on their own. Such claims as above are made mostly by relying on trademarks. Hence, a more robust, cross-sectoral framework, where the Trademark Law interacts/coordinates with other relevant laws and directives, is imperative.
Trademarks, often creating the first impression of a product’s eco-friendliness, if misleading green can distort market behaviour and consumer trust. Therefore, any policy aimed at regulating green claims should begin with stricter trademark scrutiny in the first place. However, India faces a significant policy gap when it comes to verifying green claims.
This post will explore the intersection of the Trademarks Act, 1999, The Consumer Protection Act, 2019, and the Advertisement Standards Council of India Code to propose a framework for more accountable green branding. Further, while this post does not delve into sector-specific regulations like those under FSSAI or the Organic Foods Regulations, the author remains mindful of them and has omitted their discussion to maintain brevity and focus. Towards the end, the author submits that as the global push towards Sustainable Development Goals (SDGs) intensifies, this is the opportune moment for India to develop a comprehensive policy around green trademarks.
What Does Green Trademark Indicate or Symbolise for the Consumer and Trader?
In India, what constitutes ‘green’ is not defined or clear, which forms the fount of all problems. Notwithstanding, the present scenario around ‘Green trademark’ revolves around the following three broad understandings:
1. Green trademarks are meant to indicate that the goods so offered, or the services so rendered under the concerned mark are environmentally friendly—that at any rate, the damage being caused to the environment would be replenished (making the process of manufacturing the good or providing the service, environment-friendly and sustainable).
2. Green trademarks are expected to help the consumers make an informed choice about the products they would want to purchase and the ‘cause’ that they would want to support.
3. By using trademarks as a medium to project their image, companies and businesses seek to not only differentiate themselves from their rivals but also to get a psychological edge over them. For example, ‘Forest Essentials’ promotes itself as an eco-friendly brand with packaging in glass jars and recyclable paper.
Visually speaking, green TMs usually contain the device of flowers, leaves, foliage, or trees and other earthy symbols and colours. For example, Indian trademarks like Biotique and MamaEarth, etc. have a green trademark. Their products hence are likely to be viewed upon by users with a presumption of an augmented sense of environmental commitment by the producer.
European System Take the Lead in re Green TMs
We can generate the above understanding on the basis of the European Union Trademark System and Regulations (see here).
Under the EU system, a collection of ‘Harmonised Green Terms’ (85000 in number) has been created, drawing from the standardised descriptions of goods and services found in the EUIPO’s Harmonised Database.
It is notable that having even one environmentally relevant term in the specification is enough for the EUTM to be labelled as ‘green,’ regardless of whether other terms in the list are not eco-friendly. Thus the understanding of ‘green’ EMs is dependent not on the word or expression that one chooses to use for one’s trademark, but rather on the good and/or services that are sold under that mark. For example, Patagonia and Chipotle are two of the most eco-friendly trademarks present in the world market, yet neither the words not the visuals of these convey any sign of them being ‘green’.
Green TMs Situation in India
The green trademark situation in India can be viewed under two categories: registered and unregistered green trademarks.
In India, registration of a trademark is not a pre-requisite for its commercial use. In the absence of any-check, the presence of umpteen varieties of seemingly ‘green’ trademarks pollute the market, compounding consumer confusion. The author asserts here that if a trademark goes through the registration landscape, there is still a chance, under section 9(2)(a) of the TMA, 1999, for instance, to be refused registration on grounds of being deceptive. However, sans the mandatory registration requirement, a ‘no holds barred’ situation prevails.
It is worth mentioning here that like India, the Chinese trademark law also prohibits the registration of deceptive trademarks. But, there is a huge difference as well—as in China, registration of TM is compulsory making it comparatively easy for the IP regime to regulate the usage of green TMs.
A sort of middle path has recently been effectuated by France (from January 1, 2023) through its ‘Environmental Code’. The Code ensures that the advertisers follow certain norms in order to lawfully use claims such as is ‘carbon neutral,’ ‘zero carbon, ‘with a zero-carbon footprint,’ etc. Noncompliance invites sanctions in the form of fines. The requirements are expected to better regulate advertisement on environmental characteristics and thus prevent greenwashing, while still encouraging consumers to make more environmentally friendly purchases.
Coming back to India, problems stem not only from abysmal and halfhearted, often ineffective implementation of policies/laws that exist, it also arises from the lack of awareness and sincerity in understanding the need to regulate the blatant usage of green terms.
Part II will dive deeper into this.