Green Marks and Mismatched Meanings

Demand for environmentally friendly products has skyrocketed in recent years in response to increased extreme weather events and former President Biden’s Executive Order 14008 calling for urgent climate action. Yet, consumers face a conundrum in their search for environmentally friendly products—consumers are not able to discern which of the many products with trademarks containing environmental terms such as “green” and “eco” are truly environmentally friendly. Indeed, consumers must rely on a company’s representations of its product’s environmental quality and are vulnerable to deception. Section 2(a) of the Lanham Act aims to protect consumers from deception by barring the registration of deceptive trademarks. This Article shows that the way that Section 2(a) is currently applied, however, fails to capture trademarks that are deceptive as to a product’s environmental qualities. Under Section 2(a), a trademark is deceptive if a term in the trademark communicates to consumers that a product possesses a quality that the product does not in fact possess and the quality is material to consumers’ purchasing decisions. When applying Section 2(a), U.S. Patent and Trademark Office trademark examiners must first define the term at issue and then determine whether the term, as it is defined, accurately describes the product. The definition thus plays a crucial role, but no literature exists on how examiners define environmental terms, many of which are inherently ambiguous. This Article reveals that a mismatch exists between examiners’ definitions and consumers’ understanding of environmental terms. In other words, even if an applicant’s product satisfies an examiner’s definition for the term, the product may still fail to satisfy consumers’ expectations. To effectively protect consumers from deceptive green trademarks, examiners must define environmental terms in a way that matches consumers’ understanding. This Article proposes increasing companies’ upstream disclosure of information to clarify their intended meaning for environmental terms so that the downstream interpretations of these terms by consumers and examiners can align with the intended meaning and, consequently, with each other. Specifically, this Article proposes that examiners require companies to provide a statement on their products disclosing the specific product qualities related to environmental protection that they intend for the environmental term to indicate. Examiners can then adopt this statement as the definition for the term. Additionally, this Article proposes extending the amount of time allowed for third parties to oppose the registration of a trademark on grounds of deceptiveness.