Greenwashing or communication of sustainability through collective or certification marks?

The phenomenon of greenwashing

According to the European Union Intellectual Property Office’s (“EUIPO”) study “Green EU trademarks” published in September 2021, nearly 16,000 “green” EU trademark applications were filed by the year 2020. Almost half of said applications related to products for energy conservation followed by pollution, transportation, recycling and climate change related products. It is, however, evident that a majority of these applications were part of the greenwashing phenomenon (marketing material conveying a false impression or providing misleading information on environmentally friendly features of products).

In Autumn 2021, the Finnish’s environmental administration (SYKE) noted, based on material collected for a study on environmental advertisement, that companies repeatedly used own created figurative elements, “eco-friendly labels”, such as globes, leaves and recycling symbols in their advertisements. Said elements were not recognized as environmental certificates and may therefore be considered as part of the greenwashing phenomenon.

Environmental claims are from a consumer law perspective in Finland assessed under the general provisions in the Consumer Protection Act (”CPA”) prohibiting unfair and misleading advertising. Notably the Finnish competition and consumer authority (“KKV”) has in last years taken an active role in this field. KKV recently, in connection with the EU’s Consumer Protection Cooperation Network’s (“CPS”) investigation campaign, assessed a television commercial where phrases “towards cleaner world”, “clean energy and recycling”[1] and “join the change”, among others, were used. The commercial did not include for example company product information.

In their assessment, KKV referred to the general principles under the CPA and further elaborated that the environmental claims need to be clear, precise, and truthful and they must be verifiable, even when referring to the future. The overall representation of pictures and products, such as layout, colors, pictures, sounds or other marks, need to convey a truthful and accurate image of the scope of the environmental benefits and said benefits may not be exaggerated.

In the case at hand, KKV considered that the overall impression received from the commercial was misleading as it portraited an over positive and one-sided image of the environmental friendliness of the company. Environmental marketing should not include generalizing statements and visuals referring to environmentally friendly actions, without clearly pointing out in which actions the overall impression of environmental friendliness can be based on.

Towards more sustainable solutions

Due to the increased awareness by consumers and their need to be informed not only of the origin of the goods, but also of other characteristics of the goods and/or services, there is indeed a pressure for companies to show their commitment to ecological products, recycling, and sustainability. However, this must be done in a clear, precise, and understandable way and it must be verifiable.

One option for brand owners may be to consider the use of certification and collective marks as a way to convey information in relation to environmental actions taken. Said marks are governed by EU and national trademark laws and registered by associations and/or organizations controlling and examining the goods and services provided under these marks.

The function of certification and collective marks

Both the EU trademark legislation (EUTMR 2017/1001) and the Finnish Trademark Act (544/2019) contain rules on the registration and use of the certification and collective marks.

Under the article 83(1) EUTMR, an EU certification mark is a mark

‘capable of distinguishing goods or services which are certified by the proprietor of the mark in respect of material, mode of manufacture of goods or performance of services, quality, accuracy or other characteristics, with the exception of geographical origin, from goods and services which are not so certified’.

The list of characteristics is not exhaustive. A certification mark’s essential distinguishing function relates to the guarantee of the specific characteristics of the goods and/or services for which the certification mark is used. An application for a certification mark should be filed for goods and services that the owner of the mark will be certifying under the mark.

A right to a certification mark may be granted only by registration to a legal person, an organization. A right to a certification mark cannot be obtained through extensive use of the mark.  The legal entity holding the certification mark may not itself (as the monitoring body) conduct business covering the goods and services for which the mark has been registered. Once a certification mark has been accepted for registration, it may not be registered again as an individual trademark for the same goods and/or services even after its expiry.

To mention a few examples, the FairTrade label has been registered as an EU certification mark (registration number 017959045) and the Finnish Luomuliitto (The Finnish organic association) has registered their ladybug mark (registration number 281057) as a certification mark in Finland.

Under the Finnish Trademark Act a collective mark refers to “a trademark intended for use in the trade of the members of the owner of the mark”. Whereas a certification mark indicates the characteristics of the goods and services in questions, a collective mark is used to identify the commercial origin of the producer’s products and services by informing the consumer that the producer of the goods and/or the service provider belongs to a certain association. A collective mark may (contrary to a certification mark) designate the geographical origin of the goods or services it covers.

Under the Article 74 EUTMR a collective mark is a mark that is ‘capable of distinguishing the goods or services of the members of the association, which is the proprietor of the mark, from those of other undertakings.

Therefore, an exclusive right to a collective mark may be obtained through registration by a legal person with members, for example an association of manufacturers, producers, suppliers of services or traders. In Finland registration may also be obtained through establishment.

Example on collective marks registered in Finland by the Suomalaisen Työn Liitto ry (Association for Finnish work):

(registration number 260428)

(registration number 277384)

Special requirements and features for the registration and use of collective and certification marks

In Finland, the legislation on certification and collective marks were brough into the revised Trademark Act in 2019 whereby their own separate Act was revoked. The requirements for registration of certification and collective marks are as a starting point identical with the requirements for registration of an individual trademark. However due to the certifying nature of the marks, certification and collective marks have additional special requirements and features for their registration and use.

In order to be granted a certification or collective mark registration, the applicant is required to provide the registration authority with information on

• the nature of the activities of the applicant
• the rules for membership of the applicant (collective marks)
• the rules governing the use of the certification/collective marks such as who are authorized to use the respective marks, how the certifying body is to test the required characteristics and to supervise the use of the marks and
• available sanctions in case of violation of rules governing use.

Certification marks may be used by anyone who complies with the established rules registered for the certification mark whereas collective marks can only be used by the members of the association that has registered the mark. The use of the marks is subject to inspection or supervision based on the registered rules.

It is important for brand owners to note that the exclusive right to a collective or certification mark may be revoked if the proprietor of the respective mark does not take reasonable action to prevent the use of the mark that is contrary to the regulations governing the use. This is also the situation if the use of a collective or certification mark leads to the mark being liable to mislead the public in respect of its nature or meaning. In addition, brand owners have the right to initiate infringement proceedings if the owner of a collective or certification mark, after becoming aware of an infringement, does not itself initiate proceedings within an appropriate period as well as the right to claim damages.

Advantage of being authorized to use a collective or certification mark

Certification and collective marks aim at guaranteeing that the goods and/or services bearing the mark comply with specific standards set out by the owner of the respective marks. If the owner of the mark does not take reasonable measures to prevent a use of the certificate or collective mark which is in conflict with the rules governing the use of the mark, the owner risks to lose the registration of such mark. The standards provide consumers with easily identifiable quality information, essential for them to spot goods and services maintaining a certain level of standard.

When the marks are registered, the proprietary information is also available in the public authority trademark databases, which again creates even more transparency to the certifying process.

Finally, as with individual trademarks, certification and collective marks may be cited as an obstacle to the use or registration of a later identical or similar trademark. This provides the owners and users with a more sustainable way to distinguish themselves from any third party marks.

[1] Translations from Finnish ”kohti puhtaampaa maailmaa”, ” puhdas energia ja kierrätys” and tule mukaan muutokseen