News & Insights

In today’s rapidly changing business landscape, companies are increasingly recognising the significance of Environmental Social Governance (ESG) as a critical component of their long-term success. As many organisations aim to align their operations with sustainability and social responsibility, they must navigate a complex terrain of regulations, practices, and ethical considerations. One crucial aspect of this journey involves protecting and managing ESG trade marks, which play a pivotal role in establishing brand identity.

Trade marks serve as powerful symbols that distinguish a company’s products or services from those of its competitors. In the world of ESG, trade marks have become even more essential, as they communicate an organisation’s commitment to environmental stewardship, social equity, and responsible governance practices.

Let’s explore the opportunities and challenges that arise in protecting and managing brand assets in relation to ESG. To do this, we need to first understand trade marks and certification marks.

Trade marks vs certification mark – what’s the difference?

Trade marks identify and distinguish products/services and their source. Certification marks indicate that goods/services meet specific standards or qualities. Certification marks can also show regional origin or labour characteristics. In short, trade marks identify the source, while certification marks vouch for quality and compliance.

So what trends have we been seeing in ESG trade marks?

1. Green trade marks

We have noticed a surge in companies registering ‘green’ trade marks to showcase the environmentally conscious side of their brand.

Trade mark applicants are also specifically listing ‘ESG’ in their description of services.

In addition, we have been seeing trade marks that claim services relating to “green tech”, and goods that are described as “sustainable”.

2. Language

Words like “Eco”, “Natural”, “Organic”, and “Plant-based” are descriptive and, on their own, lack the distinctiveness required for registration – that is unless they are protected as certification trade marks.

Are we seeing many trade marks that seek to certify ESG characteristics?

Fun fact: there are currently 554 registered certification trade marks and 166 pending on the Australian trade marks database.

When it comes to visually signaling a commitment to ESG, certification marks aim to set out a clear set of rules that businesses need to embrace before positioning their brand as ESG friendly. If companies adhere to these rules, they earn the right to proudly display the trade mark on their products and services. In fact, you could even argue that every certification trade mark is, in essence, certifying ESG characteristics. After all, they all revolve around how a business operates and is governed.

Some common examples that have been in existence for a long time are:

However most recently, we have seen a rise in ESG certification trade marks with them being far more overt, including:

A contributing factor behind the push for more overt ESG certification trade marks (and trade marks in general as noted above) is due to ESG perceptions of the public.

“The overwhelming weight of accumulated research finds that companies that pay attention to ESG concerns and communicate that focus, benefit from increased consumer preference and experience higher equity returns.”

–The Fashion Law

For that reason, major brands are looking to gain from enhanced action on the ESG front and associated communication of their ESG initiatives to the general public through the use of trade marks.  A selection of these new trade marks that are promoting ESG concepts through imagery and key word usage, include:

• Prada: Re-Nylon is the next step in fabric technology and sustainable luxury.
  A textile that can be endlessly regenerated without loss of quality, a true cyclical luxury.
• LV: logo upcycled sneakers.
  To create this season’s sustainable upcycling collection, the original 2019 LV Trainers were disassembled and reworked during the creative production process at Louis Vuitton’s dedicated shoe workshop in Fiesso d’Artico. The new LV Trainer Upcycling includes a revamped design using staple materials of calfskin and suede, while also featuring tie-dye coloured laces.
• Nike: Move to carbon zero, using the Nike tick to represent a circle for sustainability and look like a flower.
• QUT: With diversity logos used on its social media pages rather than the traditional logo.

Striking the ESG balance

While embracing ESG concepts through trade marks offers significant advantages, it also introduces challenges. Businesses need to navigate potential issues related to confusion within the trade mark itself and comply with relevant trade mark laws and regulations, such as s43 of the Trade Marks Act 1995 and the Australian Consumer Law. Striking the right balance between descriptive language, logos and distinctiveness is crucial in creating effective ESG trade marks.

If you are a business seeking to add sustainability principles to your brand and need further legal advice, don’t hesitate to contact one of our IP experts who can guide you through the entire process of registering your trade marks in an ethical manner.

The information contained in this article is general in nature and cannot be relied on as legal advice nor does it create an engagement. Please contact one of our lawyers listed above for advice about your specific situation.