The Authors' Take - Governing the fashion industry (through) Intellectual Property assets: systematic assessment of individual trade marks embedding sustainable claims

Governing the fashion industry (through) Intellectual Property assets: systematic assessment of individual trade marks embedding sustainable claims

by Sara Cavagnero

As public interest in sustainable fashion rapidly surges, trade marks are playing a prominent role in promoting eco-friendly products and engendering consumer trust. PRADA registered the trade mark “Re-Nylon” to signal its collection based on the regenerated-nylon yarn ECONYL, while the fast-fashion giant H&M relied on the trade mark “CONSCIOUS” to identify products made with recycled or organic materials.

These IP assets allow companies to transfer information on the so-called credence attributes, which empower consumers to select products reflecting not only their instrumental preferences but also their values. However, a missing piece of the puzzle relates to the correlation with sustainability commitments, given that the information provided is not neutral but framed by the brand and, thus, potentially contested.

The risks are clearly outlined in the report released in January 2021 by the European Commission, which revealed that 42% of green claims made by garments, cosmetics, and household companies on their websites are “exaggerated, false or deceptive”, and in 59% of cases not supported by any evidence.

The systematic assessment of 12.335 trade marks including 22 sustainability-related vocabularies filed in the United States, the European Union, and at the international level from 2000 to 2020, revealed that sustainability-related trade marks represent a modest portion of the overall number of registrations in classes 23, 24, and 25, but the growth figures are rising, in line with the general filing trends.

The untouched primacy of the term “green” suggests that corporate strategies are mainly based on green marketing principles, signalling, since the late 1980s, the positive correlation between eco-friendly shade or wording in visual branding and consumers’ judgment about companies’ actions.

Furthermore, by confirming that sustainable trade marks are largely decoupled from sustainable corporate practices, the research results validate the idea of expanding the existing taxonomy of greenwashing sins, by identifying a new form of disingenuous communications, conveyed via individual trade marks.

Still, this proposal is not flawless. Indeed, the IP regulatory framework is ill-adapted to monitor sustainability claims conveyed through individual trade marks and the misleading advertising regulation does not appear to be unfolding its full potential.

Potentially, instead, a more regulated approach, inspired by the food sector, may help to curb disingenuous corporate practices conveyed via trade marks.

[This is an Authors' Take post, which provides readers with an insight into current IP scholarship, featuring preliminary comments and thoughts from authors of articles accepted for publication in forthcoming issues of the Journal of Intellectual Property Law & Practice (OUP). The full text of this contribution will be made available on Advance Access soon]