The Future is Green: IP and Marketing Considerations for Sustainable Fashion Brands – Branding

The early 21st century saw the seemingly inexorable growth of both online retail and fast fashion. However, in recent years, as the climate crisis deepens, this approach has been challenged as consumers, retailers and fashion houses seek to place green credentials and sustainability in their respective priorities.

The rise of “green fashion” has seen

• Buying clothes from charity shops and vintage stores is rejuvenating;




• launching platforms to sell and recycle ‘pre-loved’ clothes such as Vintage and Depop;




• Releasing eco-friendly ranges at high street retailers, H&M in particular both launched their ‘conscious’ collection in 2010 and designed a clothing collection initiative, making H&M the first fashion company to collect old textiles for recycling in-store.




• High street fashion brands focus on durability, durability and style (not just fashion) of their products. And




• With the addition of clothing rental services, Hurr Fashion became the UK’s first peer-to-peer clothing rental platform.

Fashion brands/platforms have also been entering into collaborations with the aim of increasing awareness and demand for sustainable fashion products. eBay recently partnered with the reality TV show Love Island, with the aim of promoting recycled clothing to a younger audience.

And the focus on sustainability isn’t just for marketing; Some fashion businesses have succeeded in achieving B Corp certification, which recognizes high environmental (and social) performance, transparency and accountability. Chloe was the first luxury fashion house to receive B Corp recognition in 2021.

IP and marketing considerations

Movements and innovations in this ‘green’ approach are inevitably reflected in the use of intellectual property rights by players in the fashion sector to protect their businesses – patents and trade secrets protecting new sustainable manufacturing processes, design protection for eco-friendly packaging to promote environmentally friendly products, services or For clothes or brands that evoke experiences. Indeed, there has been significant growth in ‘green’ trademark applications in recent years.¹ However, it is important to note that signs that clearly convey environmental claims, such as calling the product green or eco-friendly, may be rejected, as they are descriptive of the product’s environmental attributes.

As companies seek to demonstrate their commitment to sustainability, some have crossed the line. The term ‘greenwashing’ is used to make unsubstantiated claims that mislead members of the public into believing that products are environmentally friendly or sustainable. One example is to describe a polyester product as “recyclable” meaning that the material and/or the coatings and finishes applied cannot be recycled at end of life. Greenwashing does not fall strictly within the IP, but marketing strategies and brand protection are closely related. Indeed, there is a risk of greenwashing when introducing ‘green’ trademarks. Another basis on which a mark may be rejected is if, upon initial examination, the mark is found to be deceptive, having the potential to mislead consumers as to the quality or effect of the product. However, this land is sometimes neglected. Other times, it may be possible to overcome such objections by restricting the goods and services claimed to possess the character indicated by the trademark, even if the trademark office does not itself verify that this is true before accepting the mark for registration (and, if the term in question is not controlled, such restriction may not be very effective).

Greenwashing is not a new phenomenon, but it has become more common because public consciousness has changed. While there is no legislation governing greenwashing in the UK, there are clear rules and guidelines in place that apply to UK businesses – these include:

1. Green Claims Code and accompanying guidance;² Published by the Competition and Markets Authority (CMA) in 2021.




2. The Advertising Standards Agency’s (ASA) advertising guidance on misleading environmental claims and social responsibility was released in June 2022.³ The guidance helps to interpret the CAP Code (Transfer Notice Rule Book) which covers environmental claims.⁴

Examples of misleading behavior as described in the CMA Guidelines include exaggerating the positive effects of a product or service and falsely claiming that goods are environmentally friendly through packaging and logos.

It is also worth noting that the EU Commission proposed amendments to the Unfair Trading Practices Directive and Consumer Rights Directive last year to address greenwashing and protect consumers from misleading practices and better information.⁵

The increased practice of greenwashing has not gone unnoticed by the authorities. Online retailers, ASOS and boohoo, have been investigated by CMA for greenwashing in 2022. On the other side of the pond, consumer action against H&M has been brought up against greenwashing in relation to the aforementioned collective consciousness.

Careful consideration should be given to ‘green’ claims (including ‘green’ trademarks), how the language used is interpreted by consumers, the general perception and the ability to substantiate any claim. When making general claims such as the product being ‘eco’, it is important to explain in what way and how it is measured and evaluated. It is clear that it is not necessary think to mislead consumers into finding them non-compliant, thus inadvertently engaging in greenwashing.

Being a B Corporation doesn’t guarantee that a business won’t go too far—in and of itself, it doesn’t prevent a business from exaggerating its efforts to reduce its environmental impact. Indeed, errors in the information reported when applying for accreditation can be dangerous greenwashing.

What can we expect in 2023?

In short, more of the same. Brands that haven’t yet gotten into sustainable fashion may feel they need to do so now, to stay competitive. We can expect more creativity and innovation as fashion businesses look to develop sustainable materials and business models to drive growth in the green economy. More sophisticated businesses seek to recoup the costs and reap the rewards by investing in more sustainable business methods and materials by acquiring IP and charging customers higher prices. A strong marketing campaign is key to attracting interest to new brands.

On the other hand, in the ‘age of consumers’, we can expect the authorities to keep a close eye on greenwashing in the industry with the aim of reducing misinformation. The ASA and CMA are set to step up investigation and enforcement measures related to greenwashing, particularly by making unproven sustainability claims against brands trying to escape the ‘fast fashion’ label.

Green really is the new black, and carefully considered IP strategies and advertising campaigns will be essential when entering the sustainable fashion market.

Footnotes

1 CITMA – EUIPO found a significant increase in ‘green’ trademarks

2 https://www.gov.uk/government/publications/green-claims-code-making-environmental-claims/environmental-claims-on-goods-and-services

3 CAP-Guidance-Misleading-Environmental-Claims-and-Social-Responsibility.pdf (asa.org.uk)

4 11 Environmental Claims – ASA | Cap

5 Euro-Lex – 52022PC0143 – EN – Euro-Lex (europa.eu)

The content of this article is intended to provide a general guide to the subject. You should seek specialist advice regarding specific circumstances.