TY - JOUR AU - Cavagnero, Sara AB - The author Sara Cavagnero is a PhD Researcher, Business and Law Faculty, Northumbria University, Newcastle upon Tyne, UK This article Trade mark law has become intimately tied to sustainability. Lately, individual trade marks have been playing a prominent role in the shift from official regulatory regimes to information-based forms of private governance that merge elements of IP, human rights and environmental law, thanks to their less-explored trust function. Through the systematic assessment of 12 335 trade marks including 22 sustainability-related words filed in the USA, the European Union, and at the international level from 2000 to 2020, this exploratory article sheds light on the use of these intangible assets to convey information related to (pretended) environmentally and socially sound business behaviour. Ninety trade mark owners are subsequently scrutinized, by confronting their ranking on the Good On You rating system with the claims embodied in their trade marks. In light of the research findings, the study advocates for the inclusion of individual trade marks among the varieties of greenwashing and analyses the available legal remedies which may help to curb disingenuous claims, given that sustainable trade marks are currently decoupled from sustainable business practices. 1. Introduction With an upsurge of international movements calling for greater environmental and social responsibility, the fashion industry is witnessing a proliferation of socio- and nature-inspired trade marks, conveying subtle and nuanced messages related to intangible and—possibly—sustainable business practices. These IP assets allow companies to transfer information on the so-called credence attributes, which empower consumers to select products reflecting, not only their instrumental preferences, but also their values. In such a context, trade marks are leading the shift from official regulatory regimes to information-based forms of private governance that merge elements of IP, human rights, and environmental law. The prominent role of trade marks as a governance tool in the fashion industry is not an isolated phenomenon, but is rather part of a wider shift from public regulation to non-state market-driven schemes, where the latter are seen among the few viable responses to overcome political and economic barriers to transnational business regulation. The critical role of trade marks as regulatory tools, vis-à-vis sustainability-related information, has been advocated by several scholars in the past two decades, with specific attention being devoted to certification marks—especially in the food and forestry sectors—as well as on market campaigns targeting renown brands. Most remarkably, the literature highlighted that the trajectory from certification marks that embody voluntary standards to boycott or buycott campaigns promoting sustainability in global supply chains relies entirely on consumers’ recognition of notorious, and hence powerfully expressive, marks. Although these issues have received considerable academic attention in recent years, a missing piece of the puzzle relates to the correlation between individual trade marks and sustainability commitments. This article aims to shed light on this under-researched topic, building on the legal doctrines founding trade marks less-explored trust function. The issue is particularly pressing in the fashion realm, as companies are increasingly relying on the value embedded in their individual trade marks to convey messages of fairness, justice, and environmental care in their transnational business practices. The information provided is, however, not neutral but framed by the brand and, thus, potentially contested. Consequently, stakeholders are confronted with the duty of distinguishing between truthful and disingenuous corporate strategies, albeit the existing legal remedies may be considered as inadequate within the private governance context. Against this backdrop, the first part of this work discusses the emergence of private sustainability governance in the fashion domain and assesses the role of individual trade marks in the shift from official regulatory regimes to information-based forms of private governance that merge elements of IP, human rights, and environmental law. Subsequently, the conceptual issues that arise when considering trade marks’ trust function, linked to sustainability, are investigated. The theoretical background is followed by an empirical analysis of the use of individual trade marks as sustainability indicators, with two main objectives: first, to assess to what extent trade marks are performing sustainability governance functions in the fashion industry; secondly, to ascertain whether sustainable trade marks are coupled with sustainable business practices. The final part of the study evaluates the available legal remedies, in light of the research findings. It will be argued that the IP system is ill-adapted to monitor sustainability claims conveyed through individual trade marks and that the misleading advertising regulation does not appear to be unfolding its full potential. On the contrary, a more regulated approach, inspired from the food sector, may help curb disingenuous corporate practices. 1.1 Framing trade marks within private sustainability governance of fashion value chains Trade marks’ prominence in the fashion industry has been framed within the global shift from government to private governance,1 where the latter includes all systematic efforts—both formal and informal—that involve a significant degree of non-state authority in the performance of regulatory functions across national borders, aimed at guiding and restraining business conduct.2 Several factors elevated the importance of private governance and impaired the effectiveness of domestic regulations and multilateral treaties.3 First and foremost, the dismantling of the Multi-Fibre Agreement (MFA),4 which triggered an overnight shift in the concentration of manufacturing and exporting countries. Secondly, the increasing role of free trade policies, rooted in the principle like goods being treated equivalently irrespective of their origin or how they are made,5 which resulted in commodities or manufacturing that were once largely domestic being increasingly produced in countries with lax or non-existent social or environmental standards.6 Finally, the strong competition for costs and order volumes with international buyers, which adversely affected production standards at factory levels.7 With the most labour-intensive tiers of the supply chain being relocated to least developed or developing countries8 and the most knowledge-intensive activities established in Western countries, the disjunction between the global scale of production and domestic scope of national regulation inevitably led to a decline in state control over business.9 Furthermore, faltering negotiations on multilateral environmental and labour treaties, along with poor business practices implemented (especially, but not only) by fast-fashion multinational corporations, prompted stakeholders such as non-governmental organizations (NGOs) and trade associations to gravitate towards private market-oriented regulatory schemes, which were seen among the few viable responses to overcome political and economic barriers to international environmental and social governance.10 These privately led initiatives, which include voluntary codes of conduct, self-monitoring, and auditing practices, often rely on trade marks to showcase companies’ compliance with specific standards. In such a context, trade marks have become one of the many instruments of a larger system of consumer information generation11 and are contributing to the shift from official regulatory regimes to information-based forms of private governance that merge elements of IP, human rights, and environmental law. 1.2 The emerging role of individual trade marks as a governance tool The critical role of trade marks as governance tools, vis-à-vis sustainability-related information, has been advocated by several scholars in the past two decades, with specific attention being devoted to collective and certification marks, especially in the food and forestry sectors.12 As far as the textile and garment industry is concerned, more than 75 different collective and certification marks13 (also commonly—though inaccurately—referred to as eco-labels) have been established worldwide to show that goods, services, manufacturers, or providers have met certain standards, set out in the regulations of use.14 These marks shall be adopted by undertakings other than the owner, whose permission to affix the mark is subject to fees and routine inspections carried out under the responsibility of the owner itself.15 Corporations may adhere to the standards to get preferential market access for their products on attractive market segments or to improve their image and reputation.16 As outlined above, these information-based forms of private governance are meant to influence fashion companies under the assumption that, by holding chain actors accountable through the disclosure of intangible product qualities, their overall performance will improve.17 Moreover, these marks aim to guide and motivate consumers’ choices, who are voting with their wallets, that is, making market decisions that are not limited to satisfying purely self-interest-driven preferences.18 Whether these objectives are effectively achieved is debated. In particular, a recent survey highlighted that business executives are often troubled by what they view as the cost and complexity of third-party certification regimes.19 The literature further elaborated on these points, stressing that certifications do not necessarily involve consistent trust mechanisms in that they are vulnerable to the objectivity, independence, and capacity of the auditors.20 Furthermore, standards are often incompletely disclosed and subject to change at the certifiers’ whim, making them less reliable to the public.21 Finally, although much of trade mark law depends on what a reasonable consumer knows,22 another challenge relates to information asymmetries, thus with consumers’ difficulties in finding correct data and consistently interpreting them.23 Such complexities are further exacerbated by the lack of harmonization, which results in the proliferation of multiple and competing standards.24 Against this backdrop, market observations reveal that fashion companies are increasingly resorting to another IP tool, namely to their individual trade marks, to communicate complex or less readily discernible information associated with sustainable business practices. Examples include Patagonia’s trade mark ‘WE’RE IN BUSINESS TO SAVE OUR HOME PLANET’25 which embodies the company’s mission,26 Eileen Fisher’s ‘WASTE NO MORE’,27 under which the designer sells new clothes made with sustainable fabrics, gently used garments, and art made from damaged clothes,28 or Everlane’s ‘RADICAL TRANSPARENCY’,29 which expresses the company’s commitments on supply chain monitoring.30 Many luxury companies are leveraging trade marks to communicate their environmental engagement too. PRADA, for instance, registered the trade mark ‘PRADA RE-NYLON’31 to identify the products of a special collection executed in new regenerated nylon, Econyl.32 Similarly, since 2018 Lacoste has affiliated with the International Union for Conservation of Nature (IUCN)33 for the Save Our Species collection, replacing its signature crocodile trade mark with 10 threatened animals, matching the number of polo shirts to the number of animals known to remain in the wild.34 The use of individual trade marks allows companies to overcome the difficulties listed above concerning certification and collective marks. Indeed, these assets, which are generally used in conjunction with a notorious or more established trade mark, are easily recognizable by consumers and can give a subtle nudge into a message of fairness, justice, and environmental care35. Furthermore, individual trade marks do not depend on third parties, nor on lengthy and costly auditing procedures, as their validity is only linked to the distinctiveness and not-descriptiveness of catchwords, symbols, or logos chosen by the owner. Thus, these assets are moving beyond their traditional function as signs that individualize the goods or services of a given enterprise and distinguish them from competing market offerings36. More remarkably, they are eventually performing governance functions, by showcasing their owners’ share for sustainable development as well as by influencing consumers in their purchase decisions. Although individual trade marks appear as one of the main assets companies rely on to convey information in the marketplace, their role as a private sustainability governance tool in the fashion industry has not received much academic scrutiny to-date. The existing literature is merely descriptive and portrays a rapid and large surge in the registration of trade marks including the worlds green, eco, and bio,37 but mostly referring to information dating back to the 2007 boom.38 In light of the lack of a comprehensive, updated, and easily accessible assessment on this topic, and given the mounting interest in sustainable fashion, the first objective of the research is to assess to what extent trade marks are performing sustainability governance functions in the fashion industry. With the ultimate goal of ascertaining whether there has been an actual increase in the registration of specific sustainability-related trade marks, against the benchmark of the general filing trends, the analysis will address the following issues: Issue 1—Identification of the sustainability-related vocabulary that is most commonly contained in trade marks. Issue 2Assessment of the filing trends of trade marks embedding the most frequently used terms. 1.3 The power of trade marks in triggering sustainable deliberations The use of individual trade marks as governance tools is rooted in the trade marks trust functions doctrine, according to which marks are able to reflect intangible features embedded in a good or service, which cannot be experienced directly by consumers, despite being key to inform their choices in the market.39 The trust function theory builds on the information economics’ categorization of goods as search, experience, and credence. Under this doctrine, search attributes are characteristics observable by consumers before buying,40 experience attributes are qualities that can be determined only after consumption,41 while credence attributes cannot be appraised in normal use, being such evaluation prohibitively costly or not possible.42 Taking the case of a pair of jeans as an example, the fact that the product looks like a pair of jeans is a search attribute, while the comfort and durability of the denim are experience attributes. Whether the raw materials were ethically sourced, or whether the denim was produced by saving 25 per cent of water, are credence attributes. Additional credence attributes may include the age and salary conditions of the workforce, the environmental impact of the production process, the recyclability of the end-product, the compliance with animal welfare standards, and so on—all of which may be relevant to some consumers. Trade marks’ ability to convey information about credence attributes has been referred to as the trust function.43 The increasing importance of this doctrine and its connection to sustainability are apparent if scrutinized in parallel with three supplementary trade marks’ functions, related to quality, advertising, and investment. Economic scholars describe the former as trade marks’ capacity, on the one hand, to reduce search and transaction costs for consumers while, on the other, providing incentives for companies to deliver the expected quality of products or services over time.44 The advertising45 and investment46 functions acknowledge the profound commercial significance of trade marks and are deeply connected to the notion of brand.47 Branding strategies, which are able to provide consumers with identity and belonging,48 attempt to create new cultural or social meanings that extend beyond a good’s physical attributes.49 For instance, it is apparent that a businessman who purchases a bespoke Giorgio Armani suit is not just choosing high-quality Italian craftmanship or a breathable woollen outer shell and inner lining. Rather, he might also (or even primarily) satisfy a desire to signal to others his wealth or style, or he might have some psychological gratification associated with the trade mark’s fame, which has been largely created through persuasive branding. Thus, while the trade mark Giorgio Armani helps the businessman to efficiently distinguish a Giorgio Armani from a Saint Laurent or an Alexander McQueen suit, it also conveys whatever unobservable attributes he believes the suit possesses. In the same vein, a woman50 buying a garment bearing the People Tree51 trade mark is also affirming her willingness to wear clothes manufactured according to fair labour practices and high environmental standards. Hence, through the trade mark’s trust function, the fashion company is communicating, and the buyer is choosing, certain invisible characteristics that are critical for sustainable consumption. As such, individual trade marks empower consumers to select products that reflect not only their instrumental preferences but also their values. Yet, the information provided is not neutral but framed by the brand itself and thus, potentially contested. 1.4 Disingenuous corporate practices conveyed through individual trade marks? The market is flooded with sustainability-related language, and companies are expressing a variety of claims through their trade marks—arguably to persuade customers that the fashion products they purchase are environmentally friendly and ethically sound.52 The lack of a legally binding definition of green products 53 and sustainable fashion 54 seems to be working in companies’ favour, allowing for discrepancies between public marketing narratives and actual practices and results. More remarkably, the literature highlighted the different connotations and rare intersections among the concepts of ethical fashion, eco-fashion, green fashion, and slow fashion, which are nonetheless used interchangeably.55 It has also been argued that most companies fail to define the vocabulary used as it applies to their products or production process, ultimately choosing to capitalize on the opacity of the language related to environmental conservation and ethical behaviours while devoting only minimum resources to genuinely change their business practices.56 H&M, for instance, has been heavily criticized for not explaining how the innovative materials used in their ‘Conscious’ collection are better for the environment, as well as accused of manufacturing such garments in factories where workers are exploited.57 This year, for the first time ever, garments, cosmetics and household equipment came under the scrutiny of the European Commission and national consumer authorities. In furtherance of an annual screening of the marketing claims made on companies’ websites, the report released in January 2021 revealed that in 42 per cent of cases of companies making green claims, the claims were exaggerated, false or deceptive. Moreover, in 59 per cent of cases the trader had not provided easily accessible evidence to support its claim.58 Similar results were obtained in the global survey coordinated by International Consumer Protection Enforcement Network (ICPEN).59 It is well-known that the portray of environmental or social initiatives without the implementation of business behaviours that minimize negative externalities has been defined as greenwashing.60 This practice may also include misleading or unsubstantiated claims about the actual benefits of a product or process, in order to obtain an advantage by appearing to be a sustainable company, whether that advantage comes in the form of a higher stock price, a larger customer base, increased product prices, or favoured partnerships with relevant organizations.61 In particular, the most relevant publications in this field—namely TerraChoice’s Sins of Greenwashing 62 and Lyon and Montgomery Varieties of Greenwash 63—both put forward the false labels or dubious certifications and labels amongst the greenwashing techniques but did not consider individual trade marks. Nonetheless, as individual trade marks are becoming one of the main instrument companies rely on to convey information to their customer base, the second objective of this research is to ascertain whether sustainable trade marks are coupled with sustainable business practices, to ground the thesis promoting the inclusion of individual trade marks among the greenwashing sins. The analysis will investigate how trade marks are being used by their owners and address the following issues: Issue 3—Assessment of the sustainability performance of trade mark owners. Issue 4—Evaluation of the business behaviour of potentially unsustainable brands. 2. Methodology As mentioned in the previous paragraphs, this study has two main purposes. First, it evaluates to what extent individual trade marks are becoming sustainability governance tools in the fashion industry. Secondly, it ascertains whether the identified trade marks are coupled with sustainable business practices. To this end, an explorative and interpretative assessment has been carried out, according to the following methodology. First of all, the geographical scope of the analysis was limited to the USA and the EU, because trade mark registrations in these territories cover broad territories and are administered by one single office according to a distinct procedure. Such peculiarity allows for meaningful comparisons between two regions where thousands of relevant multinational fashion companies are based. Furthermore, given the transglobal nature of fashion supply chains, attention was also devoted to transnational strategies for brand management, through the World Intellectual Property Organization (WIPO) Madrid System.64 Such a system has become the top choice for international trade mark registration among export-oriented brands, as companies can effectively register and manage their IP asset in 116 countries, representing over 80 per cent of world trade.65 In light of the above, the quantitative analysis relies on data from the United States Patent and Trademark Office (USPTO),66 the European Union Intellectual Property Office (EUIPO)67 and the WIPO Madrid Monitor68 databases. The assessment is based on the Nice Classification, an international taxonomy of goods and services used for the registration of marks, established by the Nice Agreement (1957).69 The classes that have been taken into consideration refer to textile and fashion—namely class 24 (textiles and substitutes for textiles) and 25 (clothing and footwear)—as well as to the recent material revolution characterized by rising investment, radical experimentation, and a growing commitment to sustainability in fibre production, reflected in a growing lexicon of synthetic and re-engineered fibres.70 Bio-fabricated leather, biodegradable textiles, closed-loop recycling, and e-textiles are buzzwords that are fast entering the manufacturing mainstream,71 and this is why Nice class 23 (yarns and threads for textile use), was taken into account as well. The analysis considered all the trade marks filed up to 1 October 2020 in the three offices, which incorporate one of the 22 words reported below, related to fashion and sustainability and defined in the Sustainable Fashion Glossary72: ‘bio’, ‘change’ ‘circular’ ‘conscious’ ‘diversity’ ‘earth’ ‘eco’ ‘equal’ ‘ethic’ ‘fair’ ‘green’ ‘inclusive’ ‘natural’ ‘organic’ ‘recycle’ ‘respect’ ‘responsible’ ‘revolution’ ‘share’ ‘slow’ ‘sustainable’ ‘transparent’ To provide reliable and comprehensive figures (which could not be retrieved in the free-to-access database TM-view) the preliminary data-collection process was carried out by CompuMark (Clarivate),73 which has been recognized for many years as a Highly Recommended 74 trade mark service provider for Searching and Watching in World Trade mark Review’s annual WTR 1000.75 CompuMark performed a quantitative search for each of the three considered databases (USPTO, EUIPO and WIPO Madrid Monitor), delivering two outputs: a general statistic regarding the filing trends from 2000 to 2019, for trade marks in classes 23, 24 and 25, in each IP office; three detailed documents, with a precise list of all the trade marks containing one of the above terms. Besides the register, the detailed lists included: information on mark; application date; registration date; owner name; owner name and address; class; goods and services; status; year filed. These results were, at first, analysed in their aggregate form, in order to extract the percentage of marks containing one of the considered words, against the benchmark of the general filing trends for each office. Issue 1—Identification of the sustainability-related vocabulary that is most commonly contained in trade marks. Subsequently, for the sake of establishing the most common vocabulary for individual trade marks, the data have been categorized for each office, to facilitate comparisons. The overall number of trade mark applications and registrations, along the whole considered period, have been calculated for each term, and then ranked. This assessment led to the identification of the six most popular terms. Issue 2—Assessment of the filing trends of trade marks embedding the most frequently used terms. The fluctuations in the filling trends of the trade marks including the six most popular words have been measured, by calculating the number of trade mark applications and registrations along the years 2000–2019. Afterwards, the results have been grouped in four-year clusters (2000–2004, 2005–2009, 2010–2014 and 2015–2019), to allow an assessment against the benchmark of the general filing rates for classes 23, 24 and 25. The data have been analysed separately for each IP office, but common trends have been later retrieved. Issue 3—Assessment of the sustainability performance of trade mark owners. In view of ascertaining whether sustainable trade marks are coupled with sustainable business practices, the assessment of trade mark owners retrieved in the lists provided by CompuMark was carried out, based on the ranking on the Good On You brand rating system.76 Considered one of the leading sustainability rating schemes for fashion,77 the system scores each brand against more than 60 material issues for three key areas (ie labour, environment and animals), and was developed in consultation with industry, civil society and academic experts. It is based on public company information78 relevant to over 500 data points (including brand and parent company reporting, third-party reports and indices, certifications, accreditations and other standards systems) and assesses how a brand performs using data scraping, aggregation technologies and analyst research. The collected data are verified with automated internal validation and analyst review and reassessed periodically. Following the 2020 methodology update, the rating process incorporates emerging sustainability issues and leading indicators of industry best practice, also thanks to proactive stakeholder engagement. The fashion companies reported in the detailed lists, which registered one (or more) trade marks embedding one (or more) considered vocabulary, were individually searched on the Good On You Brand rating system. The corporations that were rated by Good On You have been identified, and allocated in each category: we avoid, not good enough, it’s a start, good and great. Issue 4—Evaluation of the business behaviour of potentially unsustainable brands. Finally, the websites of the companies ranking we avoid, not good enough, or it’s a start were searched, to identify how the trade marks containing one of the considered terms were used. In particular, the sections of the websites relating to the sustainability commitments, as well as the mission of the company and its business policies have been extensively explored. 3. Results The data collection process resulted in 12.335 records, categorized as follows: 10.003 on USPTO register (81 per cent); 1.649 on EUIPO register (13 per cent); and 692 on WIPO register (6 per cent). The trade marks containing one of the 22 sustainability-related words account for 3.63 per cent of registrations in the USA, 2.06 per cent in EU, 1.85 per cent at WIPO, against the benchmark of overall filings in classes 23, 24 and 25. 3.1 Identification of the sustainability-related vocabulary that is most commonly contained in trade marks The research revealed that, among the three considered IP offices, the most popular words are: green, earth, natural, eco and change (Fig. 1). Figure 1. Open in new tabDownload slide Most frequently used terms, by IP office Figure 1. Open in new tabDownload slide Most frequently used terms, by IP office The results are driven by the filings at UPSTO and slightly vary by isolating EUIPO and WIPO’s data. Although in a different ranking, green, natural, eco, earth, are always the preferred terms—with green being the most used one across all offices. The fifth most popular world, at the European and international level, is bio, while change ranks ninth. On the opposite side of the graph, the least common terms are transparent, inclusive, circular, responsible and ethic. Again, the results reflect the number of trade marks registered at USPTO, with EUIPO accounting for transparent as the least popular vocabulary, followed by diversity, inclusive, circular and equal. WIPO follows EUIPO’s results, except for the fifth-least prevalent word, which is ethic. The world diversity is not very frequently used in the USA either, ranking 17th. Similarly, the word ethic is not often adopted for European trade marks, standing at the 15th place. The same is not true for the word equal, which is recurrently seen in trade marks registered in the USA. However, it should be noticed that it is normally not used in the sense of equality, but rather as equal in a mathematic meaning.79 3.2 Assessment of the filing trends of trade marks embedding the most frequently used terms The following graphs outline the filling variations of trade marks including the six most popular words identified in the previous section, namely green, earth, natural, eco, change and bio. The assessment—based on a comparison of 5-year periods (2000–2004, 2005–2009, 2010–2014 and 2015–2019) and conducted against the benchmark of the general filing rates for classes 23, 24 and 25—shows that trade mark applications tended to increase in the past 20 years, despite some slight oscillations. Although the data will be analysed separately for each IP office, it shall be preliminarily highlighted that the filing rates show similar fluctuations. Indeed, after a 5-year period of steady growth, the use of all the considered words increased sharply, presenting exponentially higher growth rates than the general filing trends. Yet, after reaching a peak between 2005 and 2009, the adoption of the considered words declined dramatically until 2015, with a moderate rise that continued during the following five years. The graph related to the USPTO (Fig. 2) illustrates that between 2005 and 2009, after a steady increase, the trade marks embedding the considered words surged exponentially more than the general filing rates, with green showing a record rise in absolute value, increasing from 136 to 655 filed trade marks. All the other words showed a higher growth rate than the general filings (+46.2 per cent), except for natural (39 per cent). Figure 2. Open in new tabDownload slide Filing trends, growth rates—USPTO Figure 2. Open in new tabDownload slide Filing trends, growth rates—USPTO It shall be noted that, for the term eco, although in the start period the number of filings was 0, for pragmatic reasons (ie to show the growth rates in the graph), the number has been adapted to 1. Therefore, the peak which can be observed above is not entirely sensitive. For this word, it seems more meaningful to consider the increase in absolute numbers, which shows that 264 new trade marks were filed in the considered period. Over the following five years, the number of applications dropped dramatically. Notwithstanding the growth rates for classes 23, 24 and 25, which remained positive, the registration of trade marks, including all the considered words, experienced negative trends. In particular, the most significant declines were recorded for trade marks embedding the words green and eco (–39 per cent and –25 per cent, respectively), followed by earth and bio (–34 per cent and –18 per cent, respectively). In the last timeframe, from 2015 to 2019, the general filings increased considerably (+62.7 per cent). All the trade marks embedding the considered words showed positive growth rates as well, except those including the term bio (–8.6 per cent). Yet, the number of filings appears significantly lower than the registrations for classes 23, 24 and 25. Coming now to EUIPO (Fig. 3), the highest values were recorded between 2005 and 2009. Figure 3. Open in new tabDownload slide Filing trends, growth rates—EUIPO Figure 3. Open in new tabDownload slide Filing trends, growth rates—EUIPO Taking the 40 per cent growth rate for classes 23, 24 and 25 as a benchmark, it is noticeable how the trade marks embedding the considered six words surged much more significantly, with green and natural showing increase rates 10 times higher than the benchmark (+411 per cent and +272 per cent, respectively). The graph displays a peak for trade marks including the words eco and bio but, similarly to the case for USPTO, in the starting period the number of filings was very low (two trade marks each). In absolute values, the number of new trade marks was +45 and +40 respectively, thus showing a growth path comparable to natural (+40). In the following two terms, the number of filings for classes 23, 24 and 25 declined steadily despite keeping positive values (+38 per cent from 2010 to 2014 and +25 per cent from 2015 to 2019). A significant decrease was recorded for the considered trade marks as well, except those including the words change, which kept growing from 2010 to 2014, before dropping over the next five years. In the last timeframe, all the trade marks show lower growth rates than the general filings, except those including the words eco and bio, which experienced a remarkable surge (+43 per cent and +48 per cent, respectively). The graph related to WIPO (Fig. 4) shows that from 2000 to 2009 the filing for all the trade marks embedding the considered words rose dramatically, with growth rates exponentially higher than those recorded for trade marks in classes 23, 24 and 25 (+54.3 per cent). Figure 4. Open in new tabDownload slide Filing trends, growth rates—WIPO Figure 4. Open in new tabDownload slide Filing trends, growth rates—WIPO Trade marks including the word green, earth and natural increased by 775 per cent, 633 per cent, and 533 per cent, respectively. Again, the data related to the terms eco, bio and change and not entirely sensitive and have been approximated, as in the start period the number of filings was 0. In absolute values, the rise was +20, +25 and +9. WIPO also experienced a drop in the number of trade mark applications over the next 10 years, with growth rates amounting to +17 per cent approximately. A similar declining trend was recorded for all the considered trade marks, with those including the words earth and bio showing negative growth rates. 3.3 Assessment of the sustainability performance of trade marks owners (through the Good on You Brand rating system) As illustrated in the bar graph below (Fig. 5), the analysed fashion companies are hardly pairing their sustainable branding efforts with achievable goals and transparent messaging. Figure 5. Open in new tabDownload slide Good On You ratings for identified brand owners Figure 5. Open in new tabDownload slide Good On You ratings for identified brand owners Almost half of the assessed corporations (48.8 per cent) qualified not good enough, meaning that they are not yet adequately managing their impacts across their supply chains, despite disclosing some information in one or more areas and considering some of the material issues. Another 20 per cent of the companies marked good, as they adopt policies and practices to manage multiple material issues across their supply chain and are often demonstrating leadership in one or more areas. This result is followed by 18.9 per cent of the corporations that scored it’s a start. These brands are transparent about their policies and practices to manage some material issues and are making progress on one or more of them. Surprisingly, 7.7 per cent disclose little to no relevant or concrete information about their sustainability practices, corresponding to the we avoid label. A little minority (4.4 per cent) was awarded the great rating, acknowledging their leadership in all three areas, demonstrated through the implementation of transparent and strong policies to address most material issues across their supply chain. 3.4 Evaluation of the business behaviour of companies ranking we avoid, not good enough and it’s a start The investigation on the company websites revealed that 60 out of the 68 corporations which ranked we avoid, not good enough and it’s a start relied on their sustainability-related trade marks for rights-sensitive branding purposes, namely for offering a particular selection of goods to consumers who are willing to pay a premium for ethically sourced materials or environmentally conscious production processes.80 In addition, despite the limited scope of these collections, they are promoted through comprehensive and multi-channel advertising tactics, including fashion companies’ websites, social media, collaborations or influencer partnerships, articles on newspaper and magazines, dedicated events, commitment campaigns and so on. 4. Discussion The explorative analysis was based on the assumption that, in the current marketplace, individual trade marks represent an information-based form of private governance. Relying on the trust function, trade marks can convey information about a company’s sustainability-related practices, with respect to manufacturing processes, environmental impacts of commercial operations, the safety of materials in end-products, and so on. Trade marks give benefits in competitive advantage and standing among consumers to their owners, being rewarded for their efforts in contributing to environmental and social improvements. Yet, as trade marks are registered by the corporation itself, queries over their use arise, with particular reference to greenwashing practices. 4.1 The inclusion of individual trade marks amongst private governance tools Opposed to the current literature,81 the analysis revealed that sustainability-related trade marks represent a modest portion of the overall number of registrations in classes 23, 24 and 25. Despite being far from the booming numbers witnessed before the 2008 crisis, the growth figures are rising, in line with the general filing trends, thus validating the assertion that the role of individual trade marks as governance tools has merit for further exploration. The study also revealed that the most prevalent vocabulary used in USPTO, EUIPO and WIPO trade marks applications and registrations does not embrace the holistic approach which characterizes the concept of sustainability,82 but rather reflects a narrower conceptualization, emphasizing environmental issues while overlooking social connotations. As such, sustainability appears misleadingly interpreted as environmentalism by another name, despite being broader in scope and profoundly inclusive. This outcome is consistent with most recent studies on global fashion companies’ sustainable practices, in particular on the sustainability reports83 and Corporate Social Responsibility (CSR) reporting on websites,84 which revealed that labour practices are addressed much less frequently than environmental issues.85 Hence, rather than reflecting the overarching interpretation of sustainable fashion as fashion that is created taking into account all phases of the cycle of clothing and realizing a holistic and systems thinking design perspective that reduces negative impacts and seeks to create positive economic, environmental and social impacts,86 the findings echo the theoretical backdrop of green marketing strategies,87 which have emerged since the late 1980s88 and are based on the positive correlation between eco-friendly shade or wording in visual branding and consumers’ judgment about companies’ actions.89 This assertion is corroborated by the untouched primacy of the term green—one of the oldest words within the marketing lexicon—in trade marks filed in all the considered IP offices. Initially associated to the political movement of the 1960s, the term green re-gained popularity in the general media in early 2000, after falling out of use. In the fashion domain, its reputation was initially linked to the Green Designer Exhibition in London, and to the launch of eponymous eco-chic collections,90 as well as on Vanity Fair’s Annual Green Issue that began in May 2006.91 Nowadays, as stated by Peirson-Smith and Evans, ‘[the] lexicon of green words, used in consumer-facing communications by fashion brands and designers to highlight the new and unique values of their sustainable collections, are perhaps not always clearly understood by consumers’ 92. As far as other spheres of the sustainability conceptualization are concerned, the research revealed that the filing of trade marks including the related vocabulary is quite a recent phenomenon. EUIPO and WIPO, for instance, endorsed the registration of marks embedding the word circular only from 2014, arguably in conjunction with the growing popularity of the circular economy principles. The same is true for trade marks containing the term slow, with slow fashion becoming increasingly renown in recent years and registering over 90 million social impressions between February 2019 and February 2020.93 When it comes to the word transparency, instead, the poor filing results seem to reflect the opaqueness that typifies the fashion supply chain to date. Indeed, although the situation is slowly improving94—also thanks to the emergence of advanced technological solutions95—major brands, retailers, and importers have not, until recently, shown much concern for transparency and are keen to share data and insights on their supply chains only if they feel sure it would not damage their image.96 Although the general trend is moving towards greater accountability,97 commitment is still voluntary and information disclosure is thwarted by subcontracting practices and power imbalance,98 with manufacturer and retailers who often rely on their economic strength to make a profit out of outsourced suppliers.99 The limited use of these terms can also be explained in light of trade mark functions theories. Indeed, to convey information on credence attributes, individual trade marks need to capture the imagination both in terms of concept and in the word or logo themselves: being some complex ideas such as transparency difficult to fit into a snappy logo, most established terms such as green or eco might be preferred, regardless of the descriptiveness issues that may arise during the registration phase. Overall, it can be maintained that individual trade marks play a role in governing sustainability in the fashion industry. Still, such role is limited in scope, as it embraces some sustainability spheres only. Moreover, with the word green being used remarkably more than sustainability, the findings extend to the individual trade marks’ domain the outcomes of the existing literature, namely that in fashion discourse sustainability has been used more by theorists and academics than companies and popular press.100 4.2 Individual trade marks as greenwashing sins The study confirmed the initial assumption, namely that only a narrow number of fashion companies register individual trade marks to emphasize the implementation of sustainable business behaviours. By corroborating that the translation of sustainability principles into corporate practices is episodic, the findings remarked that companies may capitalize on consumers’ willingness to pay higher retail prices for goods they believe to be manufactured and marketed in a way that is consistent with their ideals.101 Furthermore, the investigation showed that most companies perceive a competitive advantage in offering rights-sensitive product lines. Scholars have argued that this branding approach only affects a small segment of consumers that is not price sensitive but highly value sensitive.102 Nonetheless, the research revealed that, despite the limited scope of these collections, they are extensively advertised and granted high visibility via numerous media. As such, these sustainability positioning strategies are arguably aimed at increasing engagement, influence perceived CSR effort, price value and brand equity.103 These results validate the idea of expanding the existing taxonomy of greenwashing sins, by identifying a new form of disingenuous communications, conveyed via individual trade marks. Still, the challenges of this proposal should be borne in mind. Indeed, in the current regulatory framework, such an expansion would not represent a definitive solution to tackle deceptive corporate practices, as the regulation is ill-adapted to capture the growing importance of individual trade marks as sustainability governance tools, leaving room for potential abuses. 4.3 The shortfall of IP regulation As described above, monitoring the use of trade marks is currently left for IP offices, although their functions—obviously—do not encompass sustainability governance. The principal source of tension identified by the literature is based on the divergent motivations that animate the domains. Indeed, private sustainability governance, in the form of trade marks, fills information gaps related to public goods. Trade marks are established by private entities to provide information that enables consumers to select products reflecting their values, thus creating market incentives for businesses to meet heightened standards, facilitate product differentiation, and justify premium pricing.104 Within this context, IP offices play a more limited role, being requested to safeguard market competition, prevent free-riding, and reduce consumer search costs, by scrutinizing individual trade mark registrations. In the current IP regulatory framework, words that allude to or hint at sustainability may be registered as a trade mark, provided that they are sufficiently distinctive—even if they have descriptive elements—and, in certain countries, whether there is an (intent to) use in the market.105 Therefore, the line between protectable and unprotectable terms does not necessarily mark a distinction between fair and disingenuous corporate practices. Although similar patterns can be retrieved as to the conditions for trade mark registrations, hurdles also arise in outlining effective and uniform standards across the offices. For instance, the trade marks ‘ECO-JERSEY’ and ‘ALTERNATIVE ECO’, which are currently registered at USPTO,106 were refused by EUIPO, under Article 7(1)(b)—7(1)(c) EUTMR, and Article 7(1)(b)—7(2) EUTMR, respectively.107 The lack of coherence becomes even more relevant in light of the transglobal nature of supply chains, marketing channels, as well as retail and distribution networks, which led 40 per cent of the scrutinized companies to register their trade mark in more than one country. More in detail, the USPTO has shown a reluctant approach toward green trade marks, refusing to register some of them based on the assumption that the word green is either generic or merely descriptive108—in particular, where the mark’s dictionary definition related to the product or service, or where the mark was commonly used by others to describe the product or service.109 The USPTO also refused to register common terms or phrases that failed to function as trade marks, in that they were commonly used.110 In Europe, the empirical research revealed that EUIPO refused the registration of trade marks such as ‘CHANGE IS GOOD’ or ‘TIME FOR CHANGE’ under Article 7(1)(b) EUTMR, being the trade marks devoid of any distinctive character. Marks as ‘BIOCOTON Tout le Coton Bio’, ‘Small actions, big changes’, ‘ORGANIC DENIM’, ‘FOR RESPONSIBLE LIVING’ were also refused under Article 7(1)(b) and 7(1)(c) EUTMR, as not only they lacked distinctive character, but also consisted exclusively of signs or indications which may serve, in trade, to designate the kind, quality, quantity, intended purpose, value, geographical origin, the time of production or other characteristics of the goods or service. Besides the suitability of IP offices for ensuring consistency and preventing disingenuous corporate practices, whether and how they should carry out the due diligence of individual trade marks which are decoupled from their owners’ business behaviour is extremely debatable. In particular, tensions arise between the core function of marks as a badge of origin and the use of the trade mark system to control potentially misleading claims, as well as on the criteria that should be followed to measure what is sustainable and what is not. Theoretically, in the EU, an objection under Article 7(1)(g) EUTMR could be raised, as it prevents the registration of marks which are of such a nature as to deceive the public, for instance as to the nature, quality or geographical origin of the goods or service. However, these absolute grounds for invalidity presuppose the existence of actual deceit or a sufficiently serious risk that the consumer will be deceived.111 Arguably, due to the lack of consolidated and/or legally binding definitions of sustainable, ethical, slow, conscious (etc.) fashion, this provision could be relied upon should blatant violations occur112 but would not be a viable option in general terms. 4.4 Misleading advertising regulation: an opportunity not to be missed Although the inclusion of individual trade marks within the greenwashing sins would not be a definitive solution from preventing deceptive registrations, it could provide a tool to individual consumers to navigate their way through market offerings, deciphering for themselves which brands and products have genuinely sustainable credentials from those (pursuant to this study, the majority) that do not. This is coherent with the inner purpose of the greenwashing categorizations, which are consumer-oriented and aimed at helping purchasers evaluate potentially misleading claims. The same goal is pursued by misleading advertising regulation which, both in the EU and in the USA, targets unsubstantiated marketing claims. In Europe, the Directive 2005/29/EC on unfair commercial practices113 applies to all claims made in the context of business-to-consumer commercial practices, explicitly including environmental claims.114 The Directive does not discourage the use of green claims and provides a legal basis to make sure that traders use such claims credibly and responsibly. The application of the provisions of the Directive can be summarized in two main principles: Based on the Directive’s general clause, traders must, above all, present their green claims in a specific, accurate and unambiguous manner. Traders must have scientific evidence to support their claims and be ready to provide it understandably, should the claim be challenged.115 Although trade marks have been qualified as one of the many instruments of a larger system of consumer information generation,116 they do not fall within the scope of the Directive and no disputes concerning misleading trade marks in the fashion industry have been raised to date. In order to empower consumers to make more sustainable choices, the EU Commission shall not disregard the role of trade marks as greenwashing sins while drafting the new legislative proposal to empower consumers for the green transition, announced in the New Consumer Agenda.117 In the USA, the relevant regulation includes the Lanham Act section 43(a), which proscribes false or misleading advertising that—among others—misrepresents the nature, characteristics, qualities, or geographic origin of goods, services, or commercial activities,118 as well as the Federal Trade Commission (‘FTC’) Guides for the Use of Environmental Marketing Claims (the ‘Green Guides’). Issued in 1992 and updated in 1996, 1998 and 2012,119 the Green Guides specifically address ‘environmental claims included in labelling, advertising, promotional materials, and all other forms of marketing, whether asserted directly or by implication, through words, symbols, emblems, logos, depictions, product brand names, or through any other means, including marketing through digital or electronic means, such as the Internet or electronic mail.’ According to the FTC, even narrower terms and claims must be truthful, not misleading, and supported by a reasonable basis (often competent and reliable scientific evidence). The Authority also warns against using broad environmental terms for marketing purposes, such as eco-friendly or green, without qualification because they convey multiple advertising claims, and it is unlikely marketers can substantiate all such claims. Interestingly, the US regulation is broader in scope, insofar as even a logo or brand name can be considered an environmental claim under the Green Guides. However, one difficulty with the enforcement of dubious trade marks with unsubstantiated claims is the fact that the Green Guides are mere administrative interpretations of the law, and they do not have the force and effect of law and are not independently enforceable 120. Still, they may trigger agency action to the extent that claims violate section 5 of the FTC Act,121 prohibiting unfair or deceptive acts or practices in or affecting commerce. Nonetheless, to date the FTC has not taken any actions against deceptive sustainability-related logos or brand names. In light of the above, it can be stated that the misleading advertising regulation may not provide a definitive solution to greenwashing practices related to trade marks, but it is arguably not used to its full potential. This assertion is supported by a case dating back to 2019, when H&M was warned by the Norwegian Consumer Authority for misleading marketing its ‘Conscious’ garments. The Agency concluded that H&M’s portrayal of the sustainability of its collection breached Norwegian marketing laws as it was glazing over specific information about the clothing’s benefits, composition, and specifications, causing consumers to make an economic decision that they would not otherwise have made. 122 Although the case only indirectly targets a trade mark, it provides an example of how the effectiveness of misleading advertising regulation could be positively unfolded. In the coming years, national, Federal and EU authorities are expected to become more active on initiatives to counter greenwashing, and trade marks’ role in this perspective shall not be neglected. 4.5 Fibre follows food principle and the potential benefits of a more regulated approach The analysis highlighted that natural, eco, bio and organic rank among the most used sustainability-related terms in trade marks in the fashion industry in all the considered territories. Remarkably, these words hinge on a vocabulary that originated in the food industry, consolidating the adage fibre follows food, put forward by Fletcher and Vittersø, which refers to innovations first developed in the food sector that are later reproduced in textiles and clothing.123 The term natural, for instance, implies a lack of contamination, benevolent cultivation and harvesting. The term organic, instead, has been mainly linked with natural food products grown without pesticides, as it relates to living organisms.124 In the fashion context, they are often associated with textiles based on fibres such as cotton and hemp, or with fabric, chemicals and dyes. However, it should be noticed that in the EU the use of the terms bio, organic, and eco in connection with food products is strictly delimited by Regulation (EC) n. 834/2007, which provides for a list of terms and abbreviations that can be used in the labelling, advertising material, or commercial documents of products that satisfy the set requirements.125 The Annex to Regulation 834/2007 lists the term organic in all the official EU languages,126 while Article 23 strictly forbids the misleading use of such words.127 Similarly, on the other side of the Atlantic Ocean, the use of the term organic on food labels is regulated by National Organic Program (NOP), under the supervision of the US Department of Agriculture (USDA), which also enforces the NOP policies and standards.128 When it comes to the fashion domain, instead, the abovementioned rules do not apply, leading to an unrestricted—and possibly misleading—use of the abovementioned words. Several scholars and institutions advocated for the implementation of accurate rules,129 but huge difficulties have emerged in terms of what information should be provided and how the precision and truthfulness could be assessed. As Earley observed: ‘Should our clothes be “truth labelled” so we can choose material/organic alternatives, or the country of origin? The problem is that with clothing the production process is so long and complex, often taking place in many different countries, using many different materials. A “truth label” would be lengthy reading on a swing tag!’130 Many solutions have been put forward, such as the provision of information through a company’s website,131 the development of a series of symbols for the less favourable aspects of the manufacturing process, allowing the consumer to make an informed decision at the point of sale, technological assistance via a tag including a QR code,132 and so on. Yet, none of these solutions have been successfully implemented on a large scale and—more remarkably for the sake of this article—none of them addressed the use of these terms in trade marks, so the issue remains open for further exploration. 5. Research limitations and future developments Trade marks’ trust function and its connection to sustainability may trigger a debate on the role and function of these IP assets. Whether they contribute to the efficiency of competitive markets by improving the quality of information signals, or simply represent a tool in the owners’ hands to exploit consumers’ lack of access to information is controversial. Undoubtedly, misguided trade mark law can interfere with and distort the information available to consumers and prevent them from making informed decisions. When this happens, trade mark law may regrettably make the market less, rather than more, efficient.133 The present analysis is explorative and interpretative in nature and provides detailed results contributing to an understudied area. Its findings are not absolute, but allow to cover several relevant grounds, as well as state limitations and anomalies that could drive further research. Stressing the need to address misleading trade mark as one of the varieties of greenwashing, encompassing the wide range of vocabulary used to describe sustainable practices in the fashion industry, the goal of this work is to stimulate academic debate and increase pressure on regulators. The 22 keywords used in connection with sustainable fashion have been identified in the absence of a definitive list or a consistent narrative with established meanings and operate as a good starting point. Admittedly, though, this is by no means a definitive list of every linguistic referent touching on sustainable fashion in the public domain. Besides, it shall be noted that as part of the sustainable fashion lexicon, these terms coexist and cross-fertilize. Variations of the words (eg transparent–transparency), as well as different terms such as renewable, pure, second-hand, zero-waste or non-toxic, are equally valid but are absent from the list. In any event, it would be relevant to repeat the research at a later date to appraise if there is any change in the popularity of the same vocabulary—or of an expanded list of terms. Concerning data relevance, as the search criteria were set for trade marks including specific words, some of the results are not pertinent. In addition, several trade mark owners did not operate in the fashion industry, although they registered their trade mark in Nice classes 23, 24 and 25. Another limitation relates to the fact that many of the trade mark owners retrieved in the IP registries had not been assessed by Good On You and some of the ratings are now outdated. Furthermore, as a priority in the rating is given to user requests, brands with the largest market share, brands that are likely to rate highly, and those that cater for diversity, small brands tend to be under-represented,134 and the same is true for yarn and fabric manufacturers. It would be worthwhile to expand the findings by comparing the results provided by other ranking platforms, such as Positive Luxury or Higg Index. Footnotes 1 Douglas A Kysar, ‘Sustainable Development and Private Global Governance’ (2005) 83(7) Texas Law Review 2109. 2 These market-driven governance mechanisms have been described as a ‘puzzle of rules, from standardization of accounting procedures to the rules for fairness and sustainability of consumer projects’. Typically based upon voluntary private codes or standards, combined with self-monitoring, they ‘seek to bypass nation-states and regulate through supply chains. Potentially, they are creating new forms of authority and regulation that do not rely directly on the nation-state system’. See Knut-Erland Berglund, ‘Making Corporate Social Responsibility an International Concern-Norm Construction in a Globalizing World’ (2009) 57(3) Scandinavian Economic History Review 306; Burkard Eberlein and others, ‘Transnational Business Governance Interactions: Conceptualization and Framework for Analysis’ (2014) 8(1) Regulation & Governance 1; Stepan Wood and others, ‘The Interactive Dynamics of Transnational Business Governance: A Challenge for Transnational Legal Theory’ (2015) 6(2) Transnational Legal Theory 333. 3 Tim Bartley, ‘Institutional Emergence in an Era of Globalization: The Rise of Transnational Private Regulation of Labor and Environmental Conditions’ (2007) 113(2) The American Journal of Sociology 297; Susan Ariel Aaronson and Jane Kelsey, ‘Taking Trade to the Streets: The Lost History of Public Efforts to Shape Globalization’ (2003) XXV (4) International history review 990. 4 Established in 1974 after the Uruguay Rounds, the treaty allowed Developed Countries to impose quotas on garment imports from Developing Countries. On 1 January 1995, the Multi-Fibre Agreement was replaced by the WTO Agreement on Textiles and Clothing which set out a transitional process for the ultimate removal of the quotas. From 1995 to 2005 the MFA was phased out and its effects eventually ceased in 2005. See World Trade Organization (WTO), Textiles: Back in the Mainstream and accessed 26 October 2020. 5 Preferential access schemes have been established in the so-called ‘post-quota era’, including Generalized Scheme of Preferences (GPS), Bilateral and Multilateral Free Trade Agreements, trade preferences to certain African nations, Aid for Trade arrangements. See Lina Stotz and Gillian Kane, ‘Global Garment Industry Factsheet’ (2015) Clean Clothes Campaign. 6 S Labowitz and D Baumann-Pauly, ‘Business as usual is not an option. Supply chains and sourcing after Rana Plaza’ Center for business and human rights. New York University Stern School of Business, New York (2014); David E Adelman and Graeme W Austin, ‘Trade marks and Private Environmental Governance’ (2017) 93(2) The Notre Dame Law Review 709. 7 Aarti Gupta, Ingrid Boas and Peter Oosterveer, Transparency in Global Sustainability Governance: To What Effect?’ (2020) 22(1) Journal of Environmental Policy & Planning 84. 8 The bulk of production clustered in Asia, followed by Panama, Chile, and Egypt. Subsequently, Turkey, Morocco and Tunisia have also emerged as key players with reference to exports to EU countries. See Maximilian Martin, ‘Creating Sustainable Apparel Value Chains: A Primer on Industry Transformation.’ (2013) Impact Economy. 9 Adelman and Austin (n 6). 10 ibid. 11 Michael Grynberg, ‘More than IP: Trademark among the Consumer Information Laws’ (2014) 55 William & Mary Law Review 1429. 12 Certification marks have been described in the sociology literature as ‘private regulation’ in the political science literature as ‘ “non-state market-driven” governance’ or ‘private regulation’, and in the legal literature as ‘competitive supragovernmental regulation’ or/and ‘private sustainability governance’. See Tim Bartley, ‘Certifying Forests and Factories: States, Social Movements, and the Rise of Private Regulation in the Apparel and Forest Products Fields’ (2016) 31(3) Politics & Society 433; Cashore, Benjamin, Graeme Auld, and Deanna Newsom 'Governing Through Markets: Forest Certification and the Emergence of Non-state Authority' (2004) Yale University Press (New Haven); David Vogel, ‘The Private Regulation of Global Corporate Conduct: Achievements and Limitations’ (2010) 49(1) Business & Society 68–87; Errol Meidinger, ‘Competitive Supragovernmental Regulation: How Could It Be Democratic?’ (2008) 8(2) Chicago Journal of International Law 513; Kenneth W Abbott ‘Engaging the Public and the Private in Global Sustainability Governance’ (2012) 88(3) International Affairs (London) 543. 13 International Trade Centre. ‘Standards Map’ accessed 26 October 2020. 14 Certification marks are distinct from governmental certifications in that they are controlled by the private sector, and do not assess regulatory compliance. 15 For different regulations in the European Union (EU) and in the USA, see: EUIPO. ‘Certification Marks’ . ‘Certification mark applications’ accessed 26 October 2020. 16 N Oelze, T Gruchmann and M Brandenburg, ‘Motivating Factors for Implementing Apparel Certification Schemes—A Sustainable Supply Chain Management Perspective’ (2020) 12 Sustainability 4823. 17 Gupta, Boas and Oosterveer (n 7). 18 Amira Mukendi and others, ‘Sustainable Fashion: Current and Future Research Directions’ (2020) European Journal of Marketing, doi : 10.1108/EJM-02-2019-0132. 19 Fabio Iraldo and others, ‘The Future of Ecolabels’ (2020) 25(5) The International Journal of Life Cycle Assessment 833; Claudia Henninger, ‘Traceability the New Eco-Label in the Slow-Fashion Industry? - Consumer Perceptions and Micro-Organisations Responses’ (2015) 7(5) Sustainability (Basel, Switzerland) 6011–32. 20 William Cook and others, ‘Inside Environmental Auditing: Effectiveness, Objectivity, and Transparency’ (2016) 18 Current Opinion in Environmental Sustainability 33; Olivier Boiral, ‘ISO Certificates as Organizational Degrees? Beyond the Rational Myths of the Certification Process’ (2012) 33(5–6) Organization Studies 633. 21 Andrea R Hugill and others, ‘Beyond Symbolic Responses to Private Politics: Examining Labor Standards Improvement in Global Supply Chains’ Harvard Business School Working Paper, No 17-001, July 2016. 22 Grynberg (n 11). 23 Maximilian Prell and others, ‘Sustainability Certifications and Product Preference’ (2020) 38(7) Marketing Intelligence & Planning 893; Eung Jin Lee and others, ‘The Effect of Sustainable Certification Reputation on Consumer Behavior in the Fashion Industry: Focusing on the Mechanism of Congruence’ (2020) 11(2) Journal of Global Fashion Marketing 137. 24 Khan Md Raziuddin Taufique and others, ‘Measuring Consumer Understanding and Perception of Eco‐Labelling: Item Selection and Scale Validation’ (2019) 43(3) International Journal of Consumer Studies 298; Margaret Chon, ‘Marks of Rectitude. Symposium: When Worlds Collide: Intellectual Property at the Interface Between Systems of Knowledge Creation’ (2009) 77(5) Fordham Law Review 2351. 25 UPSTO, Application #88488725. See accessed 26 October 2020. 26 Patagonia, ‘Our Mission’. See accessed 26 October 2020. 27 USPTO, Application #88278653. See accessed 26 October 2020. 28 Eileen Fisher, ‘Waste No More’. See accessed 26 October 2020. 29 USPTO, Application #87393045. See accessed 26 October 2020. 30 Everlane, ‘About’. See accessed 26 October 2020. 31 EUIPO, Application no 018057767. See accessed 26 October 2020. 32 PRADA Group, ‘Prada Re-Nylon’ See accessed 26 October 2020. 33 accessed 26 October 2020. 35 Maureen Beacom Gorman, ‘What Does it Mean to be Green: A Short Analysis of Emerging IP Issues in “Green” Marketing’ (2010) 9 J Marshall Rev Intell Prop L 774; JM Hetu and AO Kramer, ‘It’s Not Easy Being: Green Use of the Terms “Organic,” “Sustainable,” and “Natural” in Trade marks and Advertising’ (2011) 4(1) Landslide 46. 36 World Intellectual Property Organization (WIPO). ‘Intellectual Property Handbook’ (2004) ; WIPO, ‘Introduction to Trademark Law & Practice. The Basic Concepts’ accessed 26 October 2020. 37 Gabriele Engels and Ulrike Grübler, ‘Green Fashion—the Sustainable Side of Clothing’ DLA Piper, 2017 accessed 27 October 2020. 38 The most frequently quoted data concern the over 300 000 applications for green trade marks for brand names, logos and taglines received by the US Patent and Trademark Office in 2007. See Jacquelyn Ottman, The New Rules of Green Marketing: Strategies, Tools, and Inspiration for Sustainable Branding (Taylor and Francis 2017); Timothy C Bradley, ‘Likelihood of Eco-Friendly Confusion: Greenwashing and the FTC “Green Guides”’ (2011) 4(1) Landslide (Chicago, IL) 39. 39 Shahar Dillbary, ‘Getting the Word Out: The Informational Function of Trade marks’ (2009) 41(4) Arizona State Law Journal 991. 40 George J Stigler, ‘The Economics of Information’ (1961) 69(3) Journal of Political Economy 213. 41 Phillip Nelson, ‘Information and Consumer Behavior’ (1970) 78(2) Journal of Political Economy 311. 42 Michael R Darby and Edi Karni, ‘Free Competition and the Optimal Amount of Fraud’ (1973) 16(1) Journal of Law & Economics 67. 43 Ariel Katz, ‘Beyond Search Costs: The Linguistic and Trust Functions of Trade marks’ (2010) 2010(5) Brigham Young University Law Review 1555. 44 William M Landes and Richard A Posner, ‘Trademark Law—an Economic Perspective’ (1987) XXX(2) Journal of Law & Economics 265. 45 The advertising function was addressed for the first time by the European Court of Justice (CJEU) in the Google France case which examined the use of someone else’s registered words as keywords to trigger ads in a search engine like Google. The CJEU held that: ‘The proprietor of a trade mark is entitled to prohibit a third party from using, without the proprietor’s consent, a sign identical with its trade mark in relation to goods or services which are identical with those for which that trade mark is registered, in the case where that use adversely affects the proprietor’s use of its mark as a factor in sales promotion or as an instrument of commercial strategy.’ See CJEU 23 March 2010, Joined Cases C-236/08 to C-238/08, Google France, ECLI:EU:C:2010:159, ss 91. 46 The investment function of a trade mark was analysed by the CJEU in the Interflora case, another case dealing with the use of a third-party trade mark as a keyword for triggering the display of Google ads. The Court defined the ‘investment function’ as the use of the mark by its proprietor ‘to acquire or preserve a reputation capable of attracting consumers and retaining their loyalty’. The CJEU also noted that while the investment function ‘may overlap with the advertising function, it is none the less distinct from the latter. Indeed, when the trademark is used to acquire or preserve a reputation, not only advertising is employed, but also various commercial techniques’. See CJEU 22 September 2011, Case C-323/09, Interflora/Marks & Spencer, ECLI:EU:C:2011:604, ss 60–61. 47 As put forward by Michael Freno, ‘the brand comprises all publicly identifiable knowledge associated with a particular product, service or company. The trademark is just the legally protectable portion’. See Michael J Freno, ‘Trademark Valuation: Preserving Brand Equity’ (2007) 97 The Trademark Reporter 1055, 1062–63. 48 As Jessica Kiser writes: ‘[t]o illustrate the difference between the role of a trademark and that of a brand, consider that a trademark can be said to answer the question “Who made this product?” A brand answers the more existential questions of ‘Who is this product?’ or ‘Who am I if I buy this product?’. See Jessica Kiser, ‘Brandright’ (2017) 70(3) Arkansas Law Review accessed 16 March 2021; See also: Deven R Desai, ‘From Trade marks to Brands’ (2012) 64(4) Florida Law Review 981. 49 Shahar J Dilbary, ‘Famous Trade marks and the Rational Basis for Protecting “Irrational Beliefs”’. (2007) 14(3) George Mason Law Review 605. 50 Recent research showed that women, especially aged 18–34 years, with higher education, studying or working as employees or teachers, are on average more informed, aware, and passionate than men about the applications of sustainability principles in various fields. Another recent study revealed the existence of a psychological connection between sustainability and femininity, as men tend to avoid eco-friendly behaviours and lifestyles because they are judged as un-feminine. See Patrizia Gazzola and others, ‘Trends in the Fashion Industry. The Perception of Sustainability and Circular Economy: A Gender/Generation Quantitative Approach' (2020) 12(7) Sustainability (Basel, Switzerland) 2809; Aaron R Brough and others, ‘Is Eco-Friendly Unmanly? The Green-Feminine Stereotype and Its Effect on Sustainable Consumption’ (2016) 43(4) Journal of Consumer Research 567. 51 The company is widely recognized among the most sustainable in the fashion industry. See accessed 26 October 2020. 52 Taking into account global Lyst and Google search data, since the beginning of 2020, there has been a 37% increase in searches for sustainability-related keywords, with the average monthly searches increasing from 27 000 in 2019 to over 32 000 year to date. Searches for ‘upcycled fashion’ have grown 42% and demand for ‘second-hand’ and ‘pre-owned’ fashion pieces has increased by 45% since November. See Lyst Insights, ‘The 2020 Conscious Fashion Report’ (2020) accessed 1 July 2020. Besides, based on data McKinsey collected from 6000 consumers across the UK, Germany, France and Spain, an additional 16% of consumers would now seek products with sustainable credentials, 20% wants to reduce their overall spending for the rest of the year and 45% would look favourably upon companies that communicate with concern and purpose rather than prices and products. See G Arici and M Lehmann, ‘CEO Agenda 2020 COVID-19 Edition’ Global Fashion Agenda and McKinsey & Company. 53 E Sdrolia and G Zarotiadis,) ‘A Comprehensive Review for Green Product Term: from Definition to Evaluation’ (2019) 33(1) Journal of Economic Surveys 150. 54 Mukendi and others (n 18). 55 ibid. 56 Sophia Mossberg, ‘Python Crossing Prohibited: The Interplay of Ethics, Aesthetics, Regulation, and Industry Transformation in the Luxury Apparel Market’ (2017) 41(3) William and Mary Environmental Law and Policy Review 751. 57 See, among others: Alden Wicker, ‘The Flawed Ways Brands Talk about Sustainability’ (Vogue Business, 2020) accessed 27 October 2020. 58 European Commission, ‘Screening of websites for “greenwashing”: Half of Green Claims Lack Evidence’ Press Release, January 2021, accessed 22 February 2021. 59 International Consumer Protection Enforcement Network (ICPEN), ‘Screening of Websites for “greenwashing”: Half of Green Claims Lack Evidence’ ICPEN News, January 2021 accessed 22 February 2021, See also: UK Competition and Markets Authority, ‘Global Sweep finds 40% of Firms’ Green Claims could be Misleading’ Press Release, 2021 accessed 22 February 2021. 60 Peter Seele and Lucia Gatti, ‘Greenwashing Revisited: In Search of a Typology and Accusation-Based Definition Incorporating Legitimacy Strategies’ (2017) 26(2) Business Strategy and the Environment 239. 61 Ellis Jones, ‘Rethinking Greenwashing: Corporate Discourse, Unethical Practice, and the Unmet Potential of Ethical Consumerism’ (2019) 62(5) Sociological Perspectives 728. 62 ‘Sins of Greenwashing’ is the earliest publication of this kind and remains a commonly cited piece among scholars studying greenwashing techniques. Updating their research in 2010, the authors identified seven ‘sins of greenwashing’ premised on an evaluation by two separate analysts of 12 061 environmental claims made about 5296 consumer products. Big box stores, specialty retailers, and ‘green boutique’ stores were sampled across five regions of the USA and Canada. See TerraChoice, ‘The “Six Sins of Greenwashing”: A Study of Environmental Claims in North American Consumer Markets’ (2007) and TerraChoice, ‘The Sins of Greenwashing: Home and Family Edition’ (2010) accessed 28 October 2020. 63 This publication offers the most comprehensive account to date of the academic literature on greenwashing techniques, having evaluated peer-reviewed publications from 1990 to 2013 and synthesized the results of 34 articles published in ISI-ranked journals that focused on greenwashing in their title or abstract. See Thomas P Lyon and A Wren Montgomery, ‘The Means and End of Greenwash’ (2015) 28(2) Organization & Environment 223. 64 WIPO Madrid System. See accessed 18 October 2020. 65 Agnieszka Przygoda, ‘The International Registration of Trade Marks under the Madrid System: Advantages and Disadvantages’ (2019) 3 Eastern European Journal of Transnational Relations 67. 66 United States Patent and Trademark Office (USPTO). See accessed 18 October 2020. 67 European Union Intellectual Property Office (EUIPO). See accessed 18 October 2020. 68 WIPO Madrid Monitor. See accessed 18 October 2020. 69 A new edition is published every five years and, since 2013, a new version of each edition is published annually. The authentic texts of the Nice Classification (in English and French) are published online by the World Intellectual Property Organization (WIPO), a self-funding agency of the United Nations, with 193 Member States. See WIPO. ‘About the Nice Classification’ accessed 18 October 2020. 70 According to ‘The State of Fashion 2020 report, 45% of apparel companies surveyed by McKinsey are looking to integrate more innovative bio-based materials and over 67% of sourcing executives state that the use of innovative sustainable materials will be important for their company.” See McKinsey Company and Business of Fashion. “The State of Fashion”, 2020, accessed 18 October 2020. 71 The rising trend may also be caught by analysing the number of filed patents, considering that companies around the world are set to file eight times as many fibre innovation patent applications in 2019 as they did in 2013, based on McKinsey analysis. 72 Condé Nast and London College of Fashion. ‘The Sustainable Fashion Glossary’ 2020 accessed 18 October 2020. 73 CompuMark, Clarivate. See accessed 18 October 2020. 74 CompuMark, ‘CompuMark named 2020 “Highly Recommended” trademark service provider by World Trademark Review’ 2020, accessed 18 October 2020. 75 World Trademark Review ‘Trademark Service Providers’, 2020 accessed 18 October 2020. 76 Good On You ‘Brand Rating System’ accessed 23 October 2020. 77 Mukendi and others (n 18). 78 The rating system does not consider information that is not in the public domain. 79 See, for instance, the trademark ‘OPPOSITE + EQUAL’ or ‘E=MC2 EASY = MAGNETIC CLOSE’ accessed 23 October 2020. 80 Jonathan Bellish, ‘Towards a More Realistic Vision of Corporate Social Responsibility through the Lens of the Lex Mercatoria’ (2012) 40(4) Denver Journal of International Law and Policy 548. 81 Engels and Grübler (n 37). 82 The concept of sustainable development is the result of growing awareness of global connections among environmental and socio-economic issues, as well as their impacts on the economy. The vision presented in the Club of Rome report, Limits to Growth (1972), emphasizes the larger dependence of people on the environment while achieving economic prosperity, opposed to the simple use of resources, locally, regionally, nationally and globally. A decade later, this sentiment was enshrined in the Bruntland Report, ‘Our Common Future’. Presented in 1987 by the World Commission on Environment and Development, it placed sustainability on the global political and economic agenda as development by satisfying the needs of the present without compromising the ability of future generations to satisfy theirs. See Bill Hopwood and others, ‘Sustainable Development: Mapping Different Approaches’ (2005) 13(1) Sustainable Development (Bradford, West Yorkshire, England) 38–52; Donella H Meadows and others, ‘Limits to Growth. A Report of THE CLUB OF ROME’S Project on the Predicament of Mankind’ A Potomac Associates Book, 1972; World Commission on Environment and Development (WCED), Our Common Future (OUP 1987). 83 Penglan Feng and Cindy Sing-bik Ngai, ‘Doing More on the Corporate Sustainability Front: A Longitudinal Analysis of CSR Reporting of Global Fashion Companies’ (2020) 12(6) Sustainability (Basel, Switzerland) 2477. 84 Jamie Gaskill-Fox and others, ‘CSR Reporting on Apparel Companies’ Websites: Framing Good Deeds and Clarifying Missteps’ (2014) 1(1) Fashion and Textiles 1. 85 Nevertheless, a salient growth of CSR reporting on human rights-related issues, especially ‘Resolving grievances’ and ‘Due diligence’, in line with the 2011 United Nations Guiding Principle (UNGP) on Business and Human Rights, as well as a greater emphasis on ‘Human Development and Training’ in the workplace was also reported. 86 Anika Kozlowski and others, ‘The ReDesign Canvas: Fashion Design as a Tool for Sustainability’ (2018) 183 Journal of Cleaner Production 194. 87 S Tseng and S Hung, ‘A Framework Identifying the Gaps between Customers’ Expectations and their Perceptions in Green Products’ (2013) 59 Journal of Cleaner Production 174. 88 ibid. 89 A Sundar and J Kellaris, ‘“How Logo Colors Influence Shoppers” Judgments of Retailer Ethicality: The Mediating Role of Perceived Eco-Friendliness’ (2017) 146(3) Journal of Business Ethics 685; B Richardson, ‘Green Illusions: Governing CSR Aesthetics’ (2019) 36 The Windsor Yearbook of Access to Justice—Recueil Annuel de Windsor d’Acces à la Justice 3. 90 Kate Fletcher, Sustainable Fashion and Textiles: Design Journeys (Earthscan 2008). 91 Graydon Carter, ‘Green Is the New Black’ (Vanity Fair, 2008) accessed 23 October 2020. 92 Anne Peirson-Smith and Susan Evans, ‘Fashioning Green Words and Eco Language: An Examination of the User Perception Gap for Fashion Brands Promoting Sustainable Practices’ (2017) 9(3) Fashion Practice 373. 93 Taking into account global Lyst and Google search data, active browsing page views and conversion rates and sales, as well as the global media coverage and social media mentioned generated. See Lyst Insights (n 52). 94 Fashion Revolution has conducted new research into the supply chain transparency efforts of 62 major fashion brands and retailers. Additionally, it ranked brands and retailers according to how much they disclose about their social and environmental policies, practices, and impacts. See ‘Out of Sight Report’ and ‘Fashion Transparency Index 2020’ and accessed 21 October 2020. 95 The general view among stakeholders is that new technologies, such as blockchain and electronic labelling should be integrated as soon as feasible. While examples of companies that have been able to set up adequate systems of traceability through the blockchain already exist, the use of the new technology is still limited to companies that produce and market a limited number of items or cater to a specific high-end customer. See SA Abeyratne and RP Monfared, ‘Blockchain Ready Manufacturing Supply Chain Using Distributed Ledger’ (2016) 5(9) IJRET: International Journal of Research in Engineering and Technology 1-10.; T Agrawal Kumar and others, ‘Blockchain-Based Secured Traceability System for Textile and Clothing Supply Chain’ in S Thomassey and X Zeng (eds), Artificial Intelligence for Fashion Industry in the Big Data Era (Springer 2018); P Boucher, S Nascimento and M Kritikos, ‘How Blockchain Technology Could Change Our Lives: In-depth Analysis’ European Parliamentary Research Service, Brussels (2017); Ruth Burstall and Birgit Clark, ‘Blockchain, IP and the Fashion Industry’ (2017) 266 Managing Intellectual Property 9; Rosie Burbidge, ‘The Blockchain is in Fashion’ (2017) Law Journal of INTA, accessed 27 October 2020; European Parliament, Resolution of 3 October 2018 on distributed ledger technologies and blockchains: building trust with disintermediation (2017/2772(RSP)); The European Union Blockchain Observatory & Forum (2018) ‘Blockchain Innovation in Europe’, Thematic Report, accessed 27 October 2020. 96 DAI Europe and Office for Economic Policy and Regional Development (EPRD), ‘A Background Analysis on Transparency and Traceability in the Garment Value Chain’ 2017, European Commission, accessed 21 October 2020. 97 UNECE, ‘Transparency in Textile Value Chains in Relation to the Environmental, Social and Human Health Impacts of Parts, Components and Production Processes’ 2017, accessed 21 October 2020. 98 Guido Noto La Diega, ‘Can the Law Fix the Problems of Fashion? An Empirical Study on Social Norms and Power Imbalance in the Fashion Industry’ (2019) 14(1) Journal of Intellectual Property Law & Practice 18–24. 99 Peter Dauvergne and Jane Lister, ‘Big Brand Sustainability: Governance Prospects and Environmental Limits’ (2012) 22(1) Global Environmental Change 36. 100 Sue Thomas, ‘From “Green Blur” to Ecofashion: Fashioning an Eco-lexicon’ (2018) 12(4) Fashion Theory 525. 101 Ralph G Steinhardt, ‘Soft Law, Hard Markets: Competitive Self-Interest and the Emergence of Human Rights Responsibilities for Multinational Corporations’ (2008) 33(3) Brooklyn Journal of International Law 933. 102 Bellish (n 80). 103 Hyo Jung (Julie) Chang and Tun-Min (Catherine) Jai, ‘Is Fast Fashion Sustainable? The Effect of Positioning Strategies on Consumers’ Attitudes and Purchase Intentions’ (2015) 11(4) Social Responsibility Journal, Emerald Group Publishing 853. 104 Jody Freeman, ‘The Private Role in Public Governance’ (2000) 75 New York University Law Review 543. 105 WIPO (n 36). 106 USPTO, ‘ECO-JERSEY’ accessed 21 October 2020. 107 EUIPO, ‘ECO-JERSEY’ ; EUIPO, ‘ALTERNATIVE ECO’ accessed 21 October 2020. 108 See Verde Power Supply, Inc, 2012 WL 4361423, at *5 (T.T.A.B. 12 September 2012); Bargoose Home Textiles Inc, 2009 WL 1719383, at *4 (T.T.A.B. 27 May 2009); Cenveo Corp, 2009 WL 4086560 (T.T.A.B. 30 September 2009); Jones Inv Co, 2009 WL 273242, at *1–3 (T.T.A.B. 21 January 2009). 109 In the fashion domain, it recently refused the registration of ZERO WASTE TEE and SUSTAINABLE SCHOOLWEAR for clothing, but it allowed registration of Everlane’s RECASHMERE, REWOOL, RECOTTON, and REKNIT, and Banana Republic’s BETTER REPUBLIC. See US Patent & Trademark Office, US Department of Commerce ‘Trademark Manual of Examining Procedure’, s 1209.01(b), describing the difference between distinctive and merely descriptive marks, accessed 21 October 2020; Grace Han Stanton and Colleen Ganin, ‘Sustainable Apparel: Using Trade marks to Communicate Ecological Commitments’ 2020, accessed 21 October 2020. 110 This was the case with LET'S BUILD A SUSTAINABLE FUTURE and NO WASTE, which were allegedly found too common to act as source identifiers. Although a ‘failure to function’ refusal is often fatal, Eileen Fisher recently overcame a refusal of WASTE NO MORE with evidence that the phrase is not commonly used. See US Patent & Trademark Office, US Department of Commerce (n 106), s 1201; Grace and Colleen, ibid. 111 CJEU, Judgment of 30 March 2006, C-259/04, Elizabeth Emanuel, EU:C:2006:215, para 47 and case-law cited therein. 112 This was the case, for instance, with reference to the use of the term ‘bio’ on biocidal goods in the recent BIO-INSECT Shocker case. The CJEU found that the mark establishes a sufficiently serious risk of misleading the consumer as to the purpose of those goods, namely that they serve to destroy or prevent pests. CJEU, Judgment of 13 May 2020, T-86/19, BIO-INSECT Shocker, EU:T:2020:199, ss 80–81, 83, 84–85. 113 According to Recital 10, the Directive ‘provides protection for consumers where there is no specific sectoral legislation at Community level and prohibits traders from creating a false impression of the nature of products’. 114 This was highlighted when, on 4 December 2008, the Environment Council adopted conclusions on the Sustainable Consumption and Production and Sustainable Industrial Policy Action Plan. Under point 18 of the conclusions, the Council ‘INVITES the Member States to fully implement the Directive on unfair commercial practices with regard to environmental claims; INVITES the Commission to include environmental claims in any future guidelines on the Directive on unfair commercial practices.’ 115 European Commission Staff Working Document ‘Guidance on the Implementation/Application of Directive 2005/29/EC on Unfair Commercial Practices’ accompanying the document ‘Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions’ (COM(2016) 320 final). 116 Grynberg (n 11). 117 European Commission, ‘New Consumer Agenda: European Commission to empower consumers to become the driver of transition’ Press Release, November 2020, accessed 21 October 2020. 118 ‘Any person who, on or in connection with any goods or services … uses in commerce any word, term, name, symbol or device, or any combination thereof, or any … false or misleading description of fact, or false or misleading representation of fact, which … (B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services or commercial activities, shall be liable in a civil action by any person who believes that he or she is likely to be damaged by such act.’ See Trademark Act of 1946, 15 USC s 1125(a)(1) (2006) (the ‘Lanham Act’). 119 Federal Trade Commission, ‘Guides for the Use of Environmental Marketing Claims (‘Green Guides’)’ accessed 21 October 2020. 120 ‘Industry guides, such as these, are administrative interpretations of law. Therefore, they do not have the force and effect of law and are not independently enforceable’. See Guides for the Use of Environmental Marketing Claims, 16 CFR s 260. 121 The Guides indicate that ‘conduct inconsistent with the positions articulated in these guides may result in corrective action by the Commission under Section 5 if, after investigation, the Commission has reason to believe that the behavior falls within the scope of conduct declared unlawful by the statute’. 122 See Natashah Hitti, ‘H&M Called Out for “greenwashing” in its Conscious Fashion Collection’ 2019 accessed 27 October 2020. 123 Kate Fletcher and Gunnar Vittersø, ‘Local Food Initiatives and Fashion Change: Comparing Food and Clothes to Better Understand Fashion Localism’ (2018) 10(2) Fashion Practice 160. 124 ibid. 125 According to the Regulation, the term ‘organic’ and all its derivates or diminutives such as ‘bio’ and ‘eco’ may be used only to label products that comply with EU organic production rules and if at least 95% of the ingredients of agricultural origin are organic. For products containing less than 95% organic ingredients, the term ‘organic’ may be used only to indicate individual organic ingredients in the list of ingredients. When reference is made to the organic production method in the ingredients list, the total percentage of organic ingredients must be indicated. 126 See accessed 21 October 2020. 127 The term ‘organic’ and all its derivates or diminutives such as ‘bio’ and ‘eco’ may be used only to label products that comply with EU organic production rules and if at least 95% of the ingredients of agricultural origin are organic. For products containing less than 95% organic ingredients, the term ‘organic’ may be used only to indicate individual organic ingredients in the list of ingredients. When reference is made to the organic production method in the ingredients list, the total percentage of organic ingredients must be indicated. 128 Food and Drug Administration, ‘Organic on Food Labels’ , Miles, National Organic Program Deputy Administrator, ‘Organic 101: What the USDA Organic Label Means’ 2019, accessed 21 October 2020. 129 The EU Commission drafted a proposal for a Regulation on consumer product safety on 13 February 2013 (2013/0049 (COD)), which included a provision on mandatory origin labelling, but the negotiations between the co-legislators on this file have been blocked since 2014. More recently, art 15 of the French Anti-Waste and Circular Economy Law (No 105/2020) set an optional environmental or social display system based on the analysis of the life cycle of the product. Such scheme is intended to provide the consumer with information on environmental characteristics and the respect of social criteria of a property, service, or category of goods or services, based mainly on a life cycle analysis. Private or public persons who wish to implement this environmental or environmental and social display, by way of marking, labelling, or any other appropriate process which specifies the categories of goods and services concerned, the methodology to be used, and the terms of display. 130 Rebecca Earley, ‘Well Fashioned—Towards Our Eco Fashion Future’ Curatorial essay for Well Fashioned Eco Style in the UK, Crafts Council Touring Exhibition, 23 March 2006–March 3 2007. 131 Lucy Middleton, ‘Dressed for Life’ (2007) 196(2624) New Scientist, 1971, 54. 132 Kaley Roshitsh, ‘The Latest “Circular Fashion” Technologies’ (2019) WWD 32. 133 Michael Hozik, ‘Making the Green by Going Green: Increased Demand for Green Product sand the FTC’s Role in a Greener Future’ (2016) 1 Georgetown Environmental Law Review Online accessed 16 March 2021.. 134 Still, it should be acknowledged that the rating system distinguishes between small and large brands based on annual turnover. Larger brands have greater influence over their supply chain impacts and are expected to publish more detailed information on policies and targets. The lowest score a small brand can achieve is ‘Not good enough’ to reflect their inherent lower level of impact on the environment, labour, and animals. © The Author(s) 2021. Published by Oxford University Press. All rights reserved. This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/open_access/funder_policies/chorus/standard_publication_model) TI - Governing the fashion industry (through) intellectual property assets: systematic assessment of individual trade marks embedding sustainable claims JF - Journal of Intellectual Property Law & Practice DO - 10.1093/jiplp/jpab059 DA - 2021-04-05 UR - https://www.deepdyve.com/lp/oxford-university-press/governing-the-fashion-industry-through-intellectual-property-assets-VbvGbaMkyQ SP - 850 EP - 868 VL - 16 IS - 8 DP - DeepDyve ER -