Have You Ever Been Greenwashed?
By: Maria Crimi Speth
There is a good chance you have never
even heard of greenwashing. Yet, your company may be at risk
by engaging in the practice of greenwashing. Wikipedia
defines greenwashing as the practice of companies disingenuously
spinning their products and policies as environmentally
friendly. In today's world, "green" is good marketing, but
saying your product is green when it isn't can have significant
consequences.
Before touting your product's environmentally friendly
qualities, review your claims carefully to ensure that you can back
them up with data. Keep in mind that if you overstep your
bounds, there are several potential consequences,
including:
- Consumer watch dogs host websites that expose any
inconsistencies in marketing claims
- The Federal Trade Commission will prosecute false or misleading
advertising claims
- The United States Patent & Trademark Office will deny a
trademark application for being "misdescriptive"
- The National Advertising Division of the Better Business Bureau
has a "challenge" process
Over the last year, the lawyers at Jaburg & Wilk have
searched, registered, and defended numerous trademarks that include
the word "green." Whenever one of our clients proposes
to adopt a trademark that includes the word green, it raises a
potential concern. First, you want your trademark to be
unique. Since January of 2009, two thousand four hundred and
eighty two (2,482) trademark applications were received by the
United States Patent & Trademark Office that contained the word
"green." These trademark applications include service
marks, product names and tag lines. Recently, the
trademark office starting issuing office actions that require the
applicant to provide evidence that their product or service
actually has the environmentally-friendly attributes indicated by
the trademark.
Of course, having a trademark application denied pales in
comparison to being the subject of a Federal Trade Commission
action. The FTC has issued Guides for the Use of
Environmental Marketing Claims which are known as the FTC green
guides. These guides can be found on the FTC website, www.ftc.gov or
http://www.ftc.gov/bcp/edu/pubs/business/energy/bus42.shtm.
In February of this year, the FTC sent letters to 78 companies,
including large retailers such as Kmart, Walmart and Target,
warning that they may be breaking the law by selling clothing and
other textile products that are labeled and advertised as "bamboo,"
but actually are made of manufactured rayon fiber. Last year,
the FTC actually sued several companies for the same false
claims.
Greenwashing can also be harmful to your reputation.
EnviroMedia Social Networking hosts a website at
greenwashingindex.com that includes a "worst offenders" list.
These websites are typically optimized on search engines, meaning
that a company's dubious honor of being listed as a greenwashing
worst offender can show up before the company's own website in
Internet search results. The good news is that this website
also offers a "most authentic" list that can help spotlight your
company's positive efforts to help the environment.
If you have any legal questions about greenwashing, your
advertising or your trademarks, Maria Speth and the Jaburg
& Wilk's experienced intellectual property attorneys can
help.
About the author: Maria Speth is the
Intellectual Property Law Department Chair at Jaburg Wilk.
She is a frequent speaker on intellectual property law, internet
law, trademark and tradename law and is the author of the book,
Protect Your Writings: A Legal Guide for
Authors.
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