Green IP Litigation

On this day after Earth Day, are you considering advertising the environmental benefits of your product? Is your competitor already doing it, and perhaps overselling the environmental benefits of its product? Are you considering a trademark that includes words such as “green” or “eco” or “enviro?” Do you have an invention that promises environmental benefits?

If you said yes to any of those, know that the word green when used to mean “good for the environment” has a many shades as the color green. That uncertainty, of course, makes litigation concerning the proper use of the word green and related terms increasingly likely.

The USPTO is struggling with what it means to be “green.” Reports are that trademark applications including words associated with the environment are up, and the USPTO is giving such applications increased scrutiny. As green and other terms relating to the environment are included in more trademarks, infringement litigation is more likely, as are office actions and litigation involving allegations of misuse of such terms.

On the patent side, the USPTO has sought to encourage development of environmentally-friendly technology by fast-tracking “green” patent applications. At least one report, however, suggests that restrictive interpretations concerning what types of inventions qualify have rendered the program less effective than many hoped. USPTO representatives have been speaking about the program at a number of conferences, but I have been unable to attend. I’d love to hear from anyone who has heard the USPTO’s view on this concern. I wonder what might happen when a business tries to advertise the green benefits of an invention that is rejected for the USPTO program. Should that rejection in any way inform the decision as to whether such green advertising is false?

False advertising litigation should be the largest byproduct of the green ambiguity. By many accounts, assertions of environmental benefits, both legitimate and illegitimate, are up. “Greenwashing”, the practice of falsely advertising products as having environmental benefits is bound to be an area of increased litigation for business, consumers and the FTC. The Seven Sins of Greenwashing offers a method of analyzing so-called “green” advertising that could lead to some interesting litigation strategies.

The current issue of the John Marshall Law School Intellectual Property Law Review offers a number of interesting articles concerning these issues. In particular, Maureen Gorman’s article What Does it Mean to Be Green: A Short Analysis of Emerging IP Issues in "Green" Marketing and Eric Lane’s Consumer Protection in the Eco-Mark Era: A Preliminary Survey and Assessment of Anti-Greenwashing Activity and Eco-Mark Enforcement, offer much food for thought.