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Have You Ever Been Greenwashed?

Categories: Intellectual Property, Article

Greenwashing leads to legal issues with FTC and others

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

The Problem with Greenwashing

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. 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.