Green Branding and “Eco” Trade Marks: IP Risks in Sustainability Claims
As the global demand for environmentally conscious goods and services is surging, more businesses are embracing green branding as a core part of their corporate identity. Buzzwords like “eco,” “green,” “sustainable,” “carbon neutral” and “earth-friendly” are becoming central to marketing strategies, packaging and trade marks. But as this trend grows, so too does the legal scrutiny.
Regulators such as the Australian Competition and Consumer Commission (ACCC) in Australia are cracking down on greenwashing, and intellectual property offices globally including IP Australia are becoming more cautious when it comes to registering and enforcing “eco” trade marks. This creates an increasingly complex legal landscape for businesses that are trying to secure registered rights for eco-focused trade marks.
Common Green Branding Issues in Trade Marks: Descriptiveness and Deceptiveness
These claims in an Australian trade mark application can trigger two key issues during examination: registrability under the Trade Marks Act 1995 (Cth) (Act) and compliance with the Australian Consumer Law, which appears in Schedule 2 to the Competition and Consumer Act 2010 (Cth) (ACL).
Trade marks that incorporate generic or descriptive terms such as “eco,” “green,” or “sustainable” may be refused registration on the basis that they lack distinctiveness (Section 41 of the Act). Many global IP offices consider these terms merely descriptive of the nature or quality of the goods or services, especially if the applicant is unable to demonstrate acquired distinctiveness through extensive use.
IP Australia may also object to trade mark applications that are likely to deceive or cause confusion (Section 43 of the Act). This is particularly relevant where a mark makes an environmental claim (e.g., “green,” “carbon neutral,” or “biodegradable”) that may mislead consumers about the environmental impact of the designated goods or services in the application. Trade marks that imply an environmental benefit may be rejected or even challenged if the goods or services do not live up to the sustainability claims embedded in the mark.
Greenwashing and the ACCC’s Enforcement Focus
Environmental marketing strategies are subject to increasingly strict standards that are being introduced in many jurisdictions. The ACCC, the UK’s CMA (Competition and Markets Authority), and the US FTC (Federal Trade Commission) have all issued guidelines to address misleading environmental claims.
In Australia, the ACCC has recently identified greenwashing as an enforcement priority. In 2024, it released updated guidance warning that environmental and sustainability claims must be clear, accurate, and substantiated. While this guidance primarily targets advertising and promotional materials, it also applies to trade marks.
For multinationals entering the Australian market, note that global trade marks used in Australian advertising and labelling will be held to the same ACL standards as local brands. A trade mark that was accepted overseas without issues may not be considered registrable in Australia if it contains environmental language considered descriptive or potentially misleading.
Best Practices for Australian and Global Brand Owners
If your business is developing or using a sustainability-focused brand in Australia, here’s how to protect your IP and avoid regulatory difficulties:
- Adopt Distinctive Trade Marks: where possible, combine green terms with unique brand elements to increase registrability and distinctiveness.
- Substantiate Eco Claims: ensure you can provide credible evidence to support any sustainability-related terms in your trade mark and other promotional materials.
- Work With IP Professionals: seek advice from a local trade marks attorney who understands both IP Australia’s requirements and ACL compliance.
- Monitor Your Trade Mark Use: even after registration, improper use of eco claims in marketing could lead to backlash from consumers, or even regulatory penalties.
- Monitor For Regulatory Changes: stay up to date on changes to relevant consumer laws to help your business remain compliant with local green branding guidelines.
Conclusion
Green branding offers powerful commercial opportunities, but may lead to IP and legal risks if not properly managed. In Australia, trade mark laws and consumer protection regulations require that environmental claims in trade marks are more than a marketing strategy – they must be truthful, evidence-based, and used responsibly.
At MBIP, we help our local and global clients to navigate this complex space, ensuring that trade marks meet the local legal standards in Australia and New Zealand, as well as globally. If your business is considering an “eco” mark or expanding into the Australian market with green branding, we’d be pleased to help you assess the risks and protect your brand the right way. Call us on 07 3369 2226 or fill out our website contact form today.
