How Trademarks Can Potentially Promote Sustainable Fashion

One of the fundamental tenets of trademark law is to safeguard consumers. Trademarks are a type of intellectual property consisting of a word, phrase, symbol, logo, design, or expression distinguishing products or services from others and identifying their source.[1] For fashion brands, the use of trademarks endows “customer loyalty and generates commercial value”, thereby protecting the brand’s creativity and vision.[2] However, trademarks have also been a powerful branding and marketing tool that has been used to build a “greener” brand through green trademarks.

A green trademark is a trademark, service mark, or certification mark that is used to distinguish and identify environmentally friendly products or services in order to inform potential consumers about the product’s or service’s impact on the environment.[3] According to statistics, the number of consumers who claim that sustainable business practices affect their buying decisions has surged in recent years. The 2023 Business of Sustainability Index (BOSI) survey demonstrates that 68% of American Consumers are willing to pay more for products that are environmentally sustainable, compared to 66% in 20222 and 64% in 2021.[4] Green trademarks are generally used on the product’s packaging to indicate that the product was sustainably made, or that the business utilizes sustainable practices to manufacture the products. Similar to traditional trademarks, the claimants of green trademarks have the possibility to register them with government agencies.[5] To that end, eco-advertising and green marketing campaigns have become commonplace internationally through the advertisement of trademarks to appeal to consumers’ concerns for the environment and companies to ‘go green’. For instance, clothing brands such as ‘People Tree’ self-advertise themselves to be a “Fair Trade” apparel with “truly conscious clothing” that prioritizes environmental welfare. A consumer choosing to purchase a garment bearing the People Tree trademark is also affirming their willingness to wear clothes manufactured according to fair labor practices and high environmental standards.[6] Many luxury companies are also leveraging trademarks to communicate their environmental engagement. Prada, for instance, registered the trademark ‘PRADA RE-NYLON’ to identify the products of a special collection executed in new regenerated nylon, Econyl.[7] Another example includes the EU Ecolabel, a European Union certification mark for eco-design products, which informs consumers about the origin and the environmental impact of the clothes they buy. Furthermore, the critical role of trademarks as a governance tool has been advocated by several scholars in the past two decades.[8] Thus, trademarks and certification marks hold great power in influencing textile standards through ordinary processes of advertising and competition.[9]

Above all, brands must be confident in the legitimacy of their environmentally friendly claims before using green trademarks, and failure to do so will inevitably create serious damage to the overall brand and risk “greenwashing”. Given that greenwashing is a deceptive marketing practice, the inadequate use of green trademarks could help regulators and consumers bring potential greenwashing lawsuits. In Canada, our Trademarks Act currently carries a prohibition against making materially false and misleading statements about the character, quality, quantity, composition, geographical origin or mode of manufacture, production or performance of goods or services.[10] Internationally, applications for green trademarks have also been on the rise. According to the European Union Intellectual Property Office (EUIPO), the number of green trademarks has increased from 1,600 in 1996 to almost 16,00 in 2020. Green trademarks account for 10-12% of all filings each year.[11] However, it is also important to note that trademark applications for marks that are clearly descriptive (such as calling a product sustainable, eco-friendly, or green) are likely to face refusal. Given that brands are getting more adept at finding ways to identify trademarks that qualify for protection (suggestive but not descriptive of the environmental benefit they promise), this is less likely to be an issue. On the balance, trademarks and certification marks have the potential in changing and shaping textile standards globally. Trademarks remain not only as legal instruments but also ethical guides reflecting the evolving dynamics between consumer consciousness and environmental responsibility.

[1] Trademarks Act, RSC 1985, c T-13, s 2.

[2] Lisa Rosaya, Luxury Fashion & the Importance of Intellectual Property, LUXURY SOC’Y (Apr. 18, 2016), https://luxurysociety.com/en/articles/2016/04/luxury-fashion-the-importance-of-intellectual-property

[3] https://blogs.gwu.edu/law-gwpointsource/2023/08/12/the-potential-for-greenwashing-from-green-trademarks-and-marketing/

[4] https://pditechnologies.com/news/consumers-willing-pay-more-sustainability/#:~:text=ATLANTA%2C%20GEORGIA%2C%20April%2026%2C,(%E2%80%9CBOSI%E2%80%9D)%20by%20PDI

[5] Louis Vuitton, Prada, Moncler Among the Brands Adopting Sustainability Logos, The Fashion Law (July 18, 2022), https://www.thefashionlaw.com/from-prada-to-moncler-brands-are-adopting-sustainability-logos/

[6] Patrizia Gazzola and others, ‘Trends in the Fashion Industry. The Perception of Sustainability and Circular Economy: A Gender/Generation Quantitative Approach’ (2020) 12(7) Sustainability (Basel, Switzerland) 2809; Aaron R Brough and others, ‘Is Eco-Friendly Unmanly? The Green-Feminine Stereotype and Its Effect on Sustainable Consumption’ (2016) 43(4) Journal of Consumer Research 567.

[7] To showcase the processes behind the Re-Nylon initiative, the company partnered with National Geographic and produced the video series What We Carry, aimed at promoting the reduction of plastic pollution. See National Geographic, ‘what we carry. The Prada Re-nylon Project’ See <https://www.nationalgeographic.com/prada-renylonproject/>

[8] https://academic.oup.com/jiplp/article/16/8/850/6211406

[9] https://www.elgaronline.com/configurable/content/journals$002fqmjip$002f13$002f2$002farticle-p141.xml?t:ac=journals%24002fqmjip%24002f13%24002f2%24002farticle-p141.xml

[10] Trademarks Act, RSC 1985, c T-13, s 7.

[11] https://euipo.europa.eu/tunnel-web/secure/webdav/guest/document_library/observatory/documents/reports/2023_Green_EUTM_report_update_2022/2023_Green_EUTM_report_2022_update_FullR_en.pdf