World Intellectual Property Day 2020 – Innovate for a Green Future

How trademarks can promote sustainability

Consumers today are increasingly conscious of environmental issues and many wish to buy and consume products that are environmentally friendly. Trademarks play an important part in ensuring that consumers know what they are getting, or that the product that they are buying complies with certain standards. It is, therefore, increasingly common to see logos indicating that a product is certified by a particular organization, such as the Fairtrade Foundation. Most legal systems around the world provide specific types of trademarks for this purpose, known as certification marks, collective marks or guarantee marks.

Most legal systems around the world provide specific types of trademarks for this purpose, known as certification marks, collective marks or guarantee marks.

Trademarks play an important part in ensuring that consumers know what they are getting, or that the product that they are buying complies with certain standards.

Certification marks exist in many countries and are used to certify specific characteristics of a given product or service. An applicant for a certification mark must provide regulations of use covering the characteristics of the goods and/or services for which it is used, the conditions governing such use, measures for testing (i.e. ensuring the goods or services comply with the certification mark) and supervision (again to ensure compliance). Importantly, the owner of a certification mark does not provide the goods and services but regulates the businesses that do.

Another way of indicating compliance with certain standards is through collective marks, which are already provided for under Article 7 of the Paris Convention for the Protection of Industrial Property (1883). Collective marks are owned by an organization or association and can be used by any trader that is a member of that association. Some jurisdictions require that applicants must file the regulations of use of the collective mark with the trademark registration authorities as part of the application. Like other trademarks, collective marks can be words or logos. They are also subject to the regular requirement that a mark must be put to genuine use.

An example of a collective mark that is used as a tool for promoting sustainable development goals is SICHUAN POVERTY ALLEVIATION, which was applied for by the Poverty Alleviation Association of Sichuan Province in China.

Up to August 2019, it had been used on 3,323 products supplied by 1,535 producers from certified poverty-stricken regions. In its first year of use, total sales of products bearing the mark reached RMB 5.1 billion (USD 720 million).

Examples in the environmental sphere

The use of certification marks by The Forest Stewardship Council (FSC) offers an interesting illustration of how marks can be used to support environmental awareness and sustainability goals. The FSC was created in 1994, following the Earth Summit in Rio de Janeiro in 1992, and established in Mexico City. Its aim is to improve forestry practices worldwide and its first certified product was a wooden spatula made from FSC certified birch wood from sustainable forests, sold in the UK, but many other wood or wood-based products bear the label. It may also appear on a variety of non-timber products such as natural latex, cork and bamboo. FSC’s Mission states: “FSC will promote environmentally appropriate, socially beneficial, and economically viable management of the world’s forests.” It holds a General Assembly every three years.

To achieve its mission, FSC has 10 principles and 57 criteria that apply to FSC-certified forests and the products that derive from them. It has three labels (FSC 100%, FSC Recycled and FSC Mix), all of which make use of the five registered trademarks featuring the FSC logo and a tick with the outline of a tree on a green background. The labels are available in over 60 languages.

FSC’s logos can be used by certified holders, retailers, end users as well as educational and other public institutions. The requirements for use of the trademark are set out in detailed documents available to these groups.

FSC members pay an annual membership fee, which varies depending on the nature of the member and whether they are in the northern or southern hemisphere. Fees vary from USD 38 (Individual Member, South) to up to USD 1,000 for a Very Large For-Profit Organization (with more than 10,000 employees or a USD 2 billion turnover) in the North.

One example of the benefits that FSC certification can bring is the Mpingo Conservation & Development Initiative (MCDI) in Tanzania, launched in 2004 to save the mpingo tree from illegal logging. In 2009, MCDI was awarded the first FSC group certificate for community-managed forests in Africa and now more than 150,000 hectares of forest are FSC certified. Mpingo is a hard wood used in making clarinets and oboes. Thanks to certification, the mpingo forests are being managed sustainably, new trees are being planted and villagers say their living standards have improved.

In rare cases, FSC suspends or terminates certificates granted to members. This happened to Ukraine charcoal producer Polyprom Group in 2019. An investigation concluded that “charcoal products with uncertified content had been systematically sold by the company using the FSC label”. Polyprom and its member companies have been prevented from acquiring a valid trademark license agreement, which is a prerequisite for holding a valid FSC certificate. Announcing the termination, FSC said “the system takes strong measures against companies that trade with non-conforming products and/or use false FSC claims".

Another example of a trademark being used to support environmental products is the Marine Stewardship Council (MSC), headquartered in London, UK. It operates an ecolabel and fishery certification program to improve the health of the world’s oceans and influence people’s choices when buying seafood and it works with partners to put the seafood market onto a sustainable footing.

The MSC has a blue fish label that is applied to seafood or wild fish from fisheries certified to its standards. Certified fisheries are assessed independently, and certified products are kept apart from non-certified ones when shipped and at the marketplace/restaurant to ensure consumers know that they are buying a certified product. Standards are reviewed regularly based on the latest science.

Organizations such as restaurants, fishmongers and charities can apply for a license to use the MSC label based on having an MSC Chain of Custody number. There is an annual fee based on the value of MSC-certified seafood purchased/sold, which ranges from GBP 160 to GBP 1,600. Royalties are also due for using the MSC ecolabel on consumer-facing products, starting at 0.5 percent of the net wholesale value.

IP protection is very important too for the protection of DARJEELING tea, which has been developed since the early nineteenth century and is enjoyed worldwide. Today, 17,500 hectares of land produce about 10 million kilograms of tea each year. Like all of India’s teas, DARJEELING is administered by the Tea Board, under the Tea Act, 1953. It has developed a unique logo, which is now registered as an international trademark under the Madrid System. The DARJEELING word and logo are also registered as certification marks in India, the UK, USA and other jurisdictions, and they were the first geographical indications (GIs) to be registered in the country. The logo is also registered as an artistic work with the Copyright Office. In 2011, DARJEELING was recognized as a protected GI in Europe, meaning it is protected against misuse, imitation or evocation.

The Tea Board has established a certification scheme. Under this scheme, DARJEELING tea is tea that is cultivated, grown or produced in the 87 tea gardens in the defined geographic area, processed and manufactured in a factory in that area and has been approved by expert tasters. The scheme provides quality control, supports local farmers and ensures that production standards are upheld.

Finally, the New York-based Rainforest Alliance (a founding member of the FSC) has a green frog certification seal that indicates that a farm, forest or tourist enterprise meets certain environmental, social and economic standards.

The Rainforest Alliance is now developing a new agriculture certification program, following its 2018 merger with UTZ (a program that certifies coffee, tea, cocoa and hazelnuts). This will result in an updated green frog seal.

The Rainforest Alliance has sustainability programs or certified producers in more than 60 countries and certified products are available in more than 130 countries. Among the companies that have worked with the Alliance since its launch in 1987 are Justin’s, S&D Coffee, Inc., GSK, P&G, Teatulia, Seattle Chocolates, Miss Jones, L’Oréal and Tiffany & Co.

One area where the Rainforest Alliance is working is San Martín in northern Peru. This region, and neighboring areas in the Amazon, boasts very fertile land but is also vulnerable to illegal deforestation and forest fires. The Rainforest Alliance works with local farmers and indigenous communities in various ways. For example, by building connections with responsible buyers; providing training to boost harvests and support diversification; increasing access to financing; and creating a climate-smart agriculture guide, which uses 13 years of data to help assess local climate conditions and determine responses.

Today, more than 3,000 coffee farmers and more than 4,000 cocoa farmers have either Rainforest Alliance or UTZ certification. The bodies work with eight indigenous communities to sustainably produce and bring to market products such as cocoa, beans, bananas, yucca and peanuts. Following the Amazon forest fires in 2019, the Rainforest Alliance raised over USD 1 million to provide training on fire prevention and business management and promote the local economy.