The early 21st century saw the seemingly inexorable rise of both online retail and fast fashion. Yet, recent years, as the climate crisis has deepened, have seen a challenge to this approach as consumers, retailers and fashion houses seek to put green credentials and sustainability at the forefront of their respective priorities.
The rise of ‘green fashion’ has seen:
- A resurgence in purchasing clothes from charity shops and vintage stores;
- The launch of platforms for selling and recycling ‘pre-loved’ clothes, such as Vinted and Depop;
- The release of eco-friendly ranges at high street retailers, with H&M notably both launching their ‘conscious’ collection in 2010 and devising the Garment Collecting initiative, making H&M the first fashion company to collect old textiles in-store for recycling;
- High street fashion brands focussing on the longevity, resilience and style (rather than just fashion) of its products; and
- the rise of clothes rental services, with Hurr Fashion becoming the UK's first peer-to-peer wardrobe rental platform.
Fashion brands/platforms have also been entering into collaborations with the aim of increasing awareness of and demand for sustainable fashion products. eBay has recently partnered with reality TV show, Love Island, with the aim of promoting recycled clothing to a younger audience.
And the focus on sustainability has not just been marketing; some fashion businesses have even been successful in obtaining B Corp certification, a designation which recognises high standards of environmental (and social) performance, transparency and accountability. Chloé was the first luxury fashion house to be B Corp accredited in 2021.
IP AND MARKETING CONSIDERATIONS
Movements and innovations in this ‘green’ approach have inevitably been reflected in the intellectual property rights players in the fashion sector use to protect their respective businesses - be it patents and trade secrets which protect new sustainable manufacturing processes, design protection for eco-friendly packaging for clothing or trade marks which evoke environmentally friendly products, services, or practises. Indeed, there has been a noticeable upsurge in ‘green’ trade mark applications in recent years.1 It is, however, worth noting that applications for marks that clearly communicate environmental claims, such as calling a product green or eco-friendly, may be refused, on the grounds of being laudatory or descriptive of the product’s environmental qualities.
As companies seek to demonstrate their commitment to sustainability, some overstep the line. ‘Greenwashing’ is the term coined for making unsubstantiated claims which deceive members of the public into believing that products are environmentally friendly or sustainable. An example is describing a polyester product as “recyclable” when the material and/or the laminations and finishings applied cannot be reused again at end of life. Greenwashing does not strictly fall within the realms of IP, but marketing strategies and brand protection are closely related. In fact, there is a risk of greenwashing when filing ‘green’ trade marks. Another basis upon which marks may be rejected is if, upon initial examination, the mark is considered to be deceptive, in that it has the potential to mislead consumers as to product quality or impact. However, this ground is sometimes overlooked. Other times, it may be possible to overcome such an objection by limiting the goods and services claimed only to those which possess the characteristic suggested by the trade mark, though the Trade Marks Office would not itself verify whether this is truly the case before accepting the mark for registration (and, if the term in question is not regulated, such a limitation may not be very effective).
Greenwashing is not a new phenomenon but has become much more common as public consciousness has changed. Whilst there is no law governing greenwashing in the UK, clear rules and guidance have been developed which apply to UK businesses – these include:
- The Green Claims Code and accompanying guidance,2 published by the Competition and Markets Authority (CMA) in 2021.
- The Advertising Standards Agency (ASA)’s advertising guidance on misleading environmental claims and social responsibility, released in June 2022.3 The guidance aids the interpretation of the CAP Code (the rule book on non-broadcasting advertisement) already in place, which cover environmental claims.4
Examples of misleading behaviour, as summarised in the CMA’s guidance, include exaggerating the positive environmental impact of a product or service and falsely implying items are eco-friendly through packaging and logos.
It is also worth noting that the European Commission, last year, proposed amendments to the Unfair Commercial Practices Directive and the Consumer Rights Directive to address greenwashing and the need to protect consumers against unfair practices and better information.5
The increased practice of greenwashing is not going unnoticed by authorities. Online retail giants, ASOS and boohoo, were investigated by the CMA in 2022 for greenwashing. Across the pond, a consumer class action has been brought against H&M for greenwashing, in relation to its Conscious Collection mentioned above.
When making ‘green’ claims (including via ‘green’ trade marks), careful consideration should be given to how the language adopted may be interpreted by consumers, the overall impression it creates and the ability to substantiate any claim made. When making general sustainability claims, such as that the product is ‘eco’, it is important to explain in what way and how this is measured and assessed. It is clear that you do not need to intend to mislead consumers to be found non-compliant, therefore capturing inadvertent greenwashing.
Being awarded B Corp accreditation does not guarantee that a business will not be found to have gone too far - it does not in itself prevent a business from exaggerating their efforts to reduce environmental impact. Indeed, inaccuracies in the data reported when applying for accreditation would be a pernicious form of greenwashing.
WHAT CAN WE EXPECT IN 2023?
In short, more of the same. Brands that are yet to move into sustainable fashion may feel that, in order to stay competitive, they must now do so. We can expect more and more innovation and creativity as fashion businesses seek to develop sustainable materials and business models to capitalise on the boom in the green economy. More sophisticated businesses will want to recoup the costs and reap the rewards associated with investing in more sustainable business methods and materials by obtaining IP and charging customers higher prices. A strong marketing campaign is key to drawing in demand for new brands.
On the other hand, in the ‘consumer age’, we can expect the authorities to be keeping a close eye on greenwashing in the industry, with the aim of reducing misinformation. The ASA and CMA are set to increase investigations and enforcement action in relation to greenwashing, particularly against brands who are attempting to move away from the ‘fast fashion’ label by making unsubstantiated claims to sustainability.
Green is certainly the new black, and carefully considered IP strategies and advertising campaigns will be increasingly important when entering into the market of sustainable fashion.
FURTHER READING
- CITMA - EUIPO finds huge rise in ‘green’ trade marks
- https://www.gov.uk/government/publications/green-claims-code-making-environmental-claims/environmental-claims-on-goods-and-services
- CAP-guidance-on-misleading-environmental-claims-and-social-responsibility.pdf (asa.org.uk)
- 11 Environmental claims - ASA | CAP
- EUR-Lex - 52022PC0143 - EN - EUR-Lex (europa.eu)
