Climate change has been described by many as the greatest threat facing mankind. But whilst the basic principle of looking after our planet should be universally acceptable, climate change and the drive towards Net-Zero has become a fiercely debated, often divisive political issue. As world leaders, activists and businesses continue to make their cases for how best to deal with climate change, research by Deloitte and others has, at least, shown that sustainability is now one of the most important considerations taken into account by consumers when purchasing products.
In this blog, we look at some of the key intellectual property (IP) rights and regimes which businesses can benefit from, in order to protect and promote their eco-friendly products.
Whilst many businesses are, actually, doing their bit to reduce emissions and improve sustainability (e.g., by developing more exclusively vegan products, using recyclable / biodegradable packaging, and generating their own energy), the unfortunate reality is that some businesses have simply jumped on what they see as a populist bandwagon and are marketing products as "green friendly", without the basis for doing so. This practise, known as "Greenwashing", is the use of false, misleading or unsubstantiated claims about the environmental efficacy of a product or service.
Eco-friendly Patents - The Green Channel
In 2009, the UK Intellectual Property Office ("UKIPO") introduced a patent scheme known as the Green Channel. This mechanism allows patent applicants to request the accelerated processing of their applications if the invention they are filing for has an environmental benefit. This service is free to use, but the applicant must request it. This can be done by filing a written request indicating how the invention or technology is environmentally friendly.
So, what is involved and what are the benefits?
- According to the UKIPO, if the environmental benefits of the invention or technology are obvious from the face of the application, the UKIPO will not conduct any further analysis or detailed investigation. However, if the green benefits of the invention are not immediately apparent, the applicant may be asked to provide an additional explanation. The UKIPO will refuse requests which are clearly unfounded (i.e., inventions which, by their very nature, are not eco-friendly).
- An applicant can request the acceleration of any aspect of the patenting process; this allows for an application to be fast-tracked to the grant stage or, if more advantageous, the applicant to receive the Patent Examiner's opinion earlier in the process. The latter would provide applicants a better insight into the likelihood of their patent being granted and allow them to tailor the application as required.
- Fast-tracking a patent application via the Green Channel may also be beneficial if an applicant is seeking patent protection in other countries, as it would allow them to benefit from the Patent Prosecution Highway Program. This global scheme allows applicants to request the acceleration of their patent application in member territories if their application has already been deemed allowable by another member (e.g., the UKIPO).
So, if you are an inventor or have developed (or are developing) a piece of technology which meets the criteria for patent protection, and your invention or technology has genuine environmental benefits, the Green Channel scheme is open to you and could significantly reduce the (otherwise often lengthy) time it takes for your application to be granted - with applications granting in less than one year in some cases.
Green Trade Marks
Trade marks help businesses distinguish themselves from competitors and, if used well, can persuade consumers to invest in their products or services. In recent years, we have seen an increase in brands using green trade marks (i.e., product and company names projecting a clean, sustainable image and/or qualities). In its February 2023 Green EUTM Report, the EU trade mark office noted a significant increase in both the number of filings and the overall share that include "green" words such as "recycling or "eco". Such use of green marks may result in consumers choosing a brand's product over less (or, at least, less obvious) sustainable competitors.
If you are looking to register a green trade mark, you need to ensure that the mark still meets the relevant criteria for registration – including that the mark is not descriptive of the goods or services it covers, and that it is sufficiently distinctive.
In 2021 the UK Competition and Markets Authority ("CMA") introduced a Green Claims Code which offered businesses guidance on making environmental claims and they have subsequently announced that they will be doing analysis of the accuracy of environmental claims made in relation to household objects. The Advertising Standards Authority ("ASA") have also published guidance for businesses on how to make "green" claims accurately.
However, some brands have used trade marks to mislead consumers in respect of the brand or product's green credentials. The ASA and the CMA have taken steps to crack down on greenwashing, for example:
- In 2022, the ASA ruled that a brand that supplied plastic artificial grass had misled consumers by calling their product "Soul Eco-grass" and claiming it was recyclable despite the grass being made from two types of plastic that required separation before recycling.
- In November 2023, the ASA ruled that an advertisement by Elf Bar (which produces and sells disposable vapes) breached advertising rules by using the taglines "Green Awareness" and "Recycling for a Greener Future", because it created a false impression that Elf Bar's vapes could be recycled easily (including at home) – when, in reality, there are currently only limited recycling options for single-use vapes in the UK.
Both regulatory bodies have advised what practices should be avoided in advertising, including that brands should not falsely imply items are eco-friendly through packaging and logos or use jargon-heavy or complex language (see our previous article here). Furthermore, the EU and UK IPOs have stated that a trade mark making false green claims could be denied registration on absolute grounds or revoked after registration if its use is likely to mislead the public.
The ASA has announced that, from January 2024, it will begin monitoring adverts and product packaging for greenwashing related to waste management more intently. We may therefore see increased enforcement in this area in the coming years.
Green Certification Marks
Another signifier brands can use are green certification marks. Certification marks guarantee that goods and services bearing the mark meet certain objectively verified criteria. Green certification marks indicate to consumers that their brands and products are sustainable and comply with specific environmental standards- e.g., by having a sustainable manufacturing process or fair labour conditions. Common green certification marks include the "Fairtrade", "Rainforest Alliance", and "Forest Stewardship Council" logos.