green certification

The Green Light for Green Certification Marks

With sustainability and green claims being a key focus for many brands globally, the number of “green filings” has risen exponentially as we discussed in our article here. Among these are green certification trademarks (“GCTM”), which include the Fairtrade logo, the Vegan Society’s VEGAN mark used on over 65,000 products and the B-Corp Certification. We have seen a sharp rise in the popularity of GCTMs – for instance, while the VEGAN mark was established in 1990, over 82% of products bearing the GCTM were only registered with the Vegan Society in the last five years.[i]

Many GCTMs are registered by organisations with a national focus, for example Vegan Action’s trademark in the US.[ii] The products on which they are displayed are increasing, with the Fairtrade mark displayed on over 5,000 products for sale in the UK, distinguishing everyday items including coffee, tea and bananas.[iii] In addition to societies and associations, many companies administer GCTMs for example Mondelēz’s Cocoa Life. 

What’s in a label?

GCTMs can offer an effective way to instantly signal a brand’s green credentials. They guarantee that the goods or services bearing the GCTM meet a certain defined standard or possess a particular set of characteristics. As brand owners are aware, with wide recognition comes criticism and GCTMs are no exception. Criticism can include comments that the GCTM is approved indiscriminately for display, or that the standards are too relaxed to give the GCTM significance. Standards and characteristics are typically agreed through research and consultation with stakeholders throughout supply chains. GCTM administrators also investigate any claims or evidence of misuse of the label and pursue the options available at law for recourse where appropriate.

There are some key differences between GCTMs and other trademarks used by brands as a badge of origin. GCTMs can be registered by any entity with legal personality, ranging from trade associations and government departments to corporates. As administrator of the GCTM, these organisations define the standards or characteristics which goods and services must meet to display the GCTM. Anyone can then apply for a licence of the GCTM where the relevant products meet the criteria specified. The process to register a GCTM as an administrator involves two stages. The first stage includes demonstrating the representation of the GCTM and the associated goods and services. These are then examined by the UKIPO or EUIPO on absolute and relative grounds. This stage is the same for ordinary marks. At the second stage, a set of regulations will need to be submitted. The IP Office will then examine the regulations. GCTMs can be registered in the UK and EU. 

Setting up a green certification trademark

Given the popularity and importance of GCTMs for consumers, businesses at each stage in supply chains are interested in securing certification for products. There are two main routes to certification. While many businesses prefer to apply for a licence to apply a GCTM administered by an established body, many organisations are setting up GCTMs corresponding with internal green programmes and initiatives. When creating a new GCTM to be administered internally, four key considerations are:   

  • Take care in choosing a mark – as with ordinary trademarks, GCTMs which cause confusion with other trademarks or lack distinctiveness may pose challenges at registration and thereafter. It is important to comply with all applicable rules such as the awaited EU Directive on green claims, given green claims including those relating to false advertising are on the rise globally.
  • Assess the reputational impact – while setting up standards, processes and teams to launch a green scheme, consider the investment necessary and the reputational damage from failures of the schemes. GCTMs placed on products which are supplied by suppliers later subject to allegations of, for example, malpractice or use of child labour may damage the reputation of the GCTM and its administrator.
  • Understand what information is required – regulations submitted as part of the application to register a GCTM must contain certain information, such as the type of products which the GCTM will be used on. Examiners will often reject applications that do not also include information such as:
    • Precisely who will be responsible for administration of the GCTM
    • How the GCTM administrator will test that a product bearing the GCTM meets the standards and characteristics set out in the regulations, and practical information relating to ongoing verification
    • Information about fees, even where no fees are intended to be charged
  • Be aware of deadlines – waiting until GCTMs have passed the first stage before preparing regulations and other required documentation puts companies at risk of missing the deadline for submission. Nevertheless, adjustments to previously prepared regulations may be needed between the two stages of registration and throughout the life of the GCTM.    

Applying to display an established green trademark

Applying for a licence to display an established GCTM on products is another popular option, given GCTMs cannot be used by the owner of the GCTM. Consumer’s recognition of such GCTMs can add value to the brand and attract new customers. 93% of British shoppers, for example, now recognise the Fairtrade certification mark.[iv] The application of GCTMs requires the satisfaction and maintenance of the criteria set out by the administrator. Naturally, a detailed assessment of the standards will therefore be required which will assist in navigating the complexity of the certification process. Cost is another factor to consider. License fee models can vary for example Vegan Society fees are based on several factors which take into account the size of the business and the number and type of products registered. Other well- known GCTM administrators also recognise that the cost of certification can be prohibitive for smaller businesses and offer lower fees. The application process and audit process for many GCTMs involves the discovery, recording and sharing of detailed information of supply chains. Any cost, confidentiality and data protection considerations need to be factored in to determine feasibility of compliance with an established GCTM’s standards. Further, applying an established GCTM could tarnish a brand where the certification faces criticism, for example where standards and audit processes are considered insufficiently rigorous. This can undermine a business’ efforts to demonstrate a meaningful commitment to its sustainable and green goals. 

In conclusion, businesses should be mindful of the different routes to achieve certification and ensure nothing has been missed when selecting an approach. Regardless, brands should not miss an opportunity to reap the benefits of green certification on their goods and services.