Businesses must build a brand to demonstrate ‘green’ credentials

Florian Traub, Désirée Fields and Triona Desmond of Pinsent Masons said a growing number of businesses are recognising the value in being able to demonstrate to customers that they are committed to taking action to curb climate change. This comes at a time when policy, regulation and public pressure is driving industry action to cut emissions and prevent a catastrophic rise in global temperatures

Some businesses are investing in emerging technologies seen as pivotal to the decarbonisation of industry and a successful ‘energy transition’ – such as hydrogen production and carbon capture use and storage technology. Other businesses are seeking sustainability innovation in other ways, such as by developing products and processes that reduce waste or improve the efficiency of operations.

The sustainability drive is manifesting itself in the world of intellectual property.

Many businesses developing green technology or processes seek patent protection for their innovations. Patents send a powerful message to investors looking for opportunities with green technology start-ups. However, according to Pinsent Masons’ Traub, businesses cannot rely on patent rights alone to profile their green credentials.

Traub said: “Patents afford businesses monopoly rights over their innovations for up to 20 years, and therefore provide an opportunity for those businesses to achieve a fair return on the often-significant investment required to develop and commercialise their research. However, businesses must also invest in building a brand around their patented technology if they want to raise some profile around their innovations.”

“Registering trade marks is a vital component of a brand strategy for green technology. A trade mark can apply to words, logos, shapes, colours, sounds, smells, 3D marks, and slogans, and it gives a business the right to prevent a third party from using the same or a similar mark to you for the same or similar goods or services. They provide more certain rights and protections for businesses than they might otherwise enjoy under common law where there is goodwill towards unregistered brands,” he said.

Earlier this year, the EU Intellectual Property Office (EUIPO) reported a significant increase in the volume of applications for EU trade marks it has received in the 25 years it has been operating that concern goods and services related to environmental protection and sustainability. It received 1,588 applications for the registration of green EU trade marks in 1996 and approaching 16,000 such applications in 2020, with annual growth reported most years in between. Green filings accounted for 11% of all EU trade mark applications last year compared with just 4% of the total applications recorded in 1996. 

At a recent event hosted by Pinsent Masons, Désirée Fields highlighted the essential role of trade marks in the promotion of sustainable goods and services. A survey of UK adults aged 16-44 last year found that seven in 10 respondents would be more likely to purchase a product which included details of its sustainability and positive environmental impact. Fields said businesses should consider investing in special certification or collective marks as a way of demonstrating their green credentials to customers.

“Unlike traditional trade marks, certification and collective marks are accompanied by schemes and regulations that persons authorised to use these types of marks must comply with,” Fields said. “There is therefore a level of checks and balances and accountability that gives consumers more certainty that the products they are buying conform to those standards.”

One example of a certification mark scheme is that operated by Soil Association Certification Limited (SACL), the UK’s largest organic certification body. It certifies over 70% of organic food and drink products in the UK. SACL has developed a series of organic standards – which differ for food and drink and farming and growing – that correspond with UK and EU organic regulation requirements.

“Certification and collective marks should be considered an addition to ‘traditional’ branding,” Fields said. “Brand owners will still need to ensure that their brand is recognisable to the public and capable of distinguishing their goods and services from those of other businesses.”

“When a business decides to develop its own green brand and apply for a trade mark that signifies to consumers that the brand is sustainable or green, it is important to retain the evidence to support such claims in case there is ever a challenge. In the case of certification marks, there are regulations that dictate certain standards that goods or services need to comply with and therefore there is a certain level of accountability to the public. However, brand owners should in any event always keep an eye on the certification mark or collective mark schemes of which they are members to ensure that they remain reputable and continue to enforce standards,” she said.

Triona Desmond of Pinsent Masons said businesses should carry out clearance searches before applying for trade mark rights. This is to ensure no-one has already registered the same or a similar mark and to avoid wasted time and costs. Businesses must also be careful to avoid ‘greenwashing’, she said.

“When applying for trade marks to signify green credentials, no check is carried out on whether what businesses intend to use the trade mark for is actually ‘green’,” Desmond said. “However, businesses should take care to ensure that use of the trade mark does not mislead about the true environmental credentials of their underlying goods or services. Making misleading claims about a product or service is a breach of consumer law, and in the UK the Competition and Markets Authority has issued guidance on, and promised enforcement action in relation to, environmental claims made by businesses in advertising. ‘Greenwashing’ is also the subject of increased litigation by activists and shareholders.”