Maryland Bar Bulletin
Publications : Bar Bulletin : March 2013

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Environmental and “green” advertising continues to gain popularity, and accordingly, there has been a significant increase in the number of “green” related trademarks. 

A stroll down a supermarket aisle or a keyword search on the USPTO trademark database will have one’s eyes dancing with visions of “eco”, “green”, “enviro”, and other such environmentally sounding words. 

“Green” trademarks are often used in advertising to enhance an advertiser’s “green” product advantages. However, consumer watch groups have raised concerns of whether “green” advertising is deceptive, especially when it purports to advertise a product that provides an environmental advantage without having scientific proof of such an assertion. 

In October 2012, the U.S. Federal Trade Commission (FTC) issued revised “Green Guides” aimed at assisting advertisers who market products purporting to be environmentally friendly or provide some form of “green” claim or advantage. The Guides will undoubtedly impact the way companies advertise their “green” products and services as well as the trademarks they select for such products and services.

Perhaps the most significant aspect of the revised Guides is what they are not. The Guides do not preempt any other federal, state, or local laws (including trademark laws), and the Guides do not bind the FTC or the public. 

So why have them? 

The Guides reflect the FTC’s current views regarding environmental advertising claims. The Guides are there to assist advertisers avoid making unfair or deceptive advertising claims regarding environmental advantages of their products. In this regard, the Guides describe general opinions that may be applicable for all environmental advertisements, consumers’ perceptions of environmental advertisements, and techniques advertisers can use to scientifically substantiate and qualify their “green” claims. Interestingly, the Guides never mention the word trademark.  Presumably, this is to avoid conflicting with state and federal laws specifically dealing with trademarks. However, the Guides state that they “apply to environmental claims in labeling, advertising, promotional materials, and all other forms of marketing in any medium, whether asserted directly or by implication, through words, symbols, logos, depictions, product brand names, or any other means.” Accordingly, one can interpret this to include trademarks.

The Guides caution advertisers to ensure their eco-friendly product claims are confirmed by scientific proof, and that any claims of a product being degradable are specific to the extent that they are completely degradable within one year of being disposed. Therefore, 99 percent degradable does not necessarily mean that a product is “degradable” for the purposes of non-deceptive advertising. The Guides further describe how advertisers can properly use certifications and seals of approval with respect to their products, and how their products’ recyclable claims can be substantiated.

One section of the Guides specifically states, “it is deceptive to misrepresent, directly or by implication, that a product, package, or service offers a general environmental benefit.  Unqualified general environmental benefit claims are difficult to interpret and likely convey a wide range of meanings.” The Guides indicate that the way to avoid such deception is to “use clear and prominent qualifying language that limits the claim to a specific benefit or benefits.”  The Guides are replete with this type of guidance, which may actually offer very little specified guidance of how to design a slogan, logo, or product packaging to ensure there is sufficiently clear and prominent limiting language. Nonetheless, the Guides do provide numerous specific examples of how advertisers may change their “green” claims to comply with the Guides.

In one specific example, the Guides indicate that using the phrase “Eco-friendly” to describe a product would be deceptive. However, using “Eco-friendly: made with recycled materials” would not be deceptive so long as the phrase “made with recycled materials” is clear and prominent in the advertising as this qualifies the reasoning behind the term “Eco-friendly”. 

Moreover, the advertiser can further substantiate its “green” claim by indicating that the entire product or package contains recycled material, which makes the overall product more environmentally beneficial. If no other deceptive claims are included, then the advertisement is deemed non-deceptive.

Environmentally-friendly products continue to enter the market and are often tied with “green-related” trademarks. Using “eco”, “green”, “enviro”, and other similar words in conjunction with trademarks and advertising may result in the advertising being deemed deceptive if the advertising is not specific and the “green” claims are not backed by scientific proof. The FTC cannot invalidate a deceptive “green” trademark. However, a court may determine that such a trademark is deceptive, and accordingly invalid. While the FTC’s Green Guides offer assistance for marketers of environmentally-friendly products, the Guides are purposefully vague and open to interpretation. Therefore, the message to clients is to proceed with caution when advertising a “green” trademark or product.

Mohammad S. Rahman is a patent attorney and practices intellectual property law at Rahman LLC in Columbia, Maryland.

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Publications : Bar Bulletin : March 2013

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