Harris Bricken: Green Trademarks in China are Getting Red Lights

Green trademarks are running into red lights in China. Just about every application to register a mark that includes the word “green” is being rejected. Rumor has it that concerns over greenwashing are to blame, though given the opaque nature of the application process this cannot be confirmed.

Greenwashing is the “practice of making unwarranted or overblown claims of sustainability or environmental friendliness in an attempt to gain market share.” The use of words such as “green”, “eco” and “sustainable” to describe products that are not in fact environment-friendly can be considered a form of greenwashing.

China’s Trademark Law prohibits the registration of deceptive trademarks. A trademark that greenwashes the underlying products can be considered deceptive. We suspect that deceptiveness concerns are behind the many rejections of green trademarks and these suspicions are shared by practitioners in China.

Contrary to the practice in the United States, the China National Intellectual Property Administration (CNIPA) does not publish the notices it issues regarding specific trademark applications. In any case, notices to applicants tend to be somewhat terse, often leaving them to read between the lines. As a result, the motivations behind the rejections of specific applications to register green trademarks cannot be confirmed.

We do know that CNIPA’s American counterpart, the United States Patent and Trademark Office (USPTO), is explicitly raising greenwashing concerns. In the case of some applications to register green trademarks, USPTO has required a disclaimer of the relevant terms, on deceptiveness grounds. Unfortunately, disclaimers are basically not an option in China, meaning that an outright refusal is the likely outcome.

For brands whose products are in fact environment-friendly, they could try appealing rejections of green trademarks, presenting evidence of their eco bona fides. In many cases, however, demonstrating planet-friendliness may not be feasible. Plus, generally speaking CNIPA is not that open to substantive arguments over refusal grounds.

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Green Trademarks in China are Getting Red Lights