Trade Marks and the Green Economy

We find ourselves in the ‘green transition’, where the traditional ‘take-make-throw’ model of production is being replaced by a ‘circular’ economy which favours repair, reuse and recycling to extend products’ life and to regenerate the natural world.

While some businesses have ‘sustainability’ at their heart and adopt green messaging to promote their brand, others take a strategic short-cut and engage in greenwashing - communicating a green message without matching it with any green behaviour. In both cases, trade mark protection might be sought to underpin the brand, yet in the case of greenwashing the trade mark might confuse consumer as to the true nature of the goods or services, or applicants might seek to monopolise terms which are descriptive or appear to be certifying the sustainable credentials. Are such (mis-) behaviours enough for trade mark law to intervene?

Trade mark law incorporates the principle of exhaustion of rights: once trade mark goods have been placed on the market with the trade mark holder’s permission, the trade mark is not infringed by further distribution or resale of those goods. This seems supportive of green practices such as repair and upcycling. However, the law also includes an exception. Where the protected mark enjoys a reputation, trade mark owners can prevent further, provided that they can convince the court that their legitimate interests are affected, which may occur, for example, where the condition of the goods is changed or impaired after the first sale, or – in the case of luxury goods – the reputation of the mark is damaged. What if a legitimate purchaser wants to be creative with the branded goods that they have bought and re-use them in ways in which the brand owner disapproves? Should principles of freedom of expression or environmental protection prevail over trade mark rights? Will courts appreciate the value of sustainability, or view it as merely taking an unfair advantage of the brand owner’s protected reputation?

Controversy has also been ignited in the world of food. At a time when many see plant-based alternatives to meat and dairy products as necessary to preserve resources and redress the damage that modern intensive farming practices have had on the environment, the EU is looking to ban the use of ‘meaty’ names for non-meat foods. In the UK, the Supreme Court has ruled that the term ‘milk’ cannot be used in relation to plant-based drinks, which are used as milk substitutes, based upon assimilated law. The food legislation is intended to protect farmers against what some see as unfair competition, yet such moves seem to be creating a gulf between food law and trade mark law, where meat terms are routinely registered for meat substitutes, unless the terms are plainly deceptive. Which set of rules is out of step in this battle between deception and protectionism?

In this event, our expert panel will seek to explore the tricky issues surrounding ‘green’ trade mark issues from a transatlantic perspective.

Confirmed Speakers

• Professor Ilanah Fhima, UCL Faculty of Laws; Co-Director of IBIL
• Professor Dev Gangjee, University of Oxford
• Dr Luminita Olteanu, University of Warwick
• Assistant Professor Mary Zhao, Florida International University College of Law

Chair: The Hon. Mr Justice Meade, Royal Courts of Justice

17:30 Registration and refreshments
18:00 Event begins
19:30 Reception
20:15 Event ends

This event will be held in-person but will also be live streamed.

Fees for this event are from £8-£35
Free places for UCL students and staff, full time academics, judiciary and government legal services.

Image Credit: suedadilli

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Host or Publisher UCL Institute of Brand and Innovation Law (IBIL)