Protecting the Ideas that Protect the Earth®
A law blog about trademarks, patents, and advertising - from a green perspective
By Michael E. Tschupp
Archive for June, 2011
Not according to SMU Dedman School of Law’s Sarah Tran. In her recent article, Expediting Innovation: The Quest for a New Sputnik Moment, Prof. Tran takes the position that the USPTO’s GreenTech Pilot Program is not as green as it looks. The program’s stated purpose is to promote green innovation by sending patent applications for green technology to the top of the pile, but it is rarely used by patent applicants, and Prof. Tran argues that the program is not serving the purpose for which it was implemented.
The article includes a discussion of the initial term of the program, which was hampered by having been limited only to particular technology groups believed to be the ones that would encompass green technology. Of course, the truth is that green technology is incredibly diverse and can fall into almost any of the USPTO’s art groups. That restriction has since been removed. Another cited problem with the program is that it limits the number of claims in a candidate application, although that restriction also has applied to the non-green accelerated examination program.
Prof. Tran also maintains that the USPTO has overstated the benefits of the program, and that it is a rational decision on the part of applicants to not undertake the additional costs and labor of meeting the program’s requirements in exchange for shaving perhaps only a few months from the pendency time of their applications. According to an anonymous PTO representative interviewed by Tran, the program is so restrictive because it is designed to not be too attractive to applicants, because if it were attractive, it is feared that the volume of applications would overwhelm the already-backlogged USPTO’s ability to examine them. Of course, that raises some questions, like “Why have a program that you do not want people to use?” and “How can the USPTO effectively promote green innovation under any program if it lacks the funding and Examiner bandwith to handle the applications that will come in?”
Tran suggests that the program can be improved by eliminating most of the eligibility requirements, including the restriction on the number and type of claims, by examining green patent applications fast enough to make it worthwhile to take the trouble to file them as green, and through active collaboration with other agencies to define what constitutes a green invention so that the program can be focused on those areas.
The theme of the article is that we find ourselves at a point in time where there must be a concerted national effort towards technological process in eco-friendly technologies to meet the the environmental threat, much like the effort that was put forth to propel the U.S. into space after the Soviet launch of Sputnik. But the question remains, how do we get that done?
In the second installment of our ongoing series on greenwashing sins, we discuss the second sin, or the “Sin of No Proof.” This one is fairly self-explanatory. According to terrachoice, this sin entails “[a]n environmental claim that cannot be substantiated by easily accessible supporting information or by a reliable third-party certification. Common examples are facial tissues or toilet tissue products that claim various percentages of post-consumer recycled content without providing evidence.”
Unlike Sin #1, the Hidde Trade-Off (which has gone from a near 100% frequency in 2007 down to under 30% in the most-recent 2010 survey), occurrences of this sin are unfortunately at their all-time high. Estimates are that more than 70% of all green advertising claims commit this sin, and as of the 2010 survey, it has become the most commonly-committed sin. Consumers must be more careful than ever to only trust green advertising claims that come from a trusted source that is willing to back up its claims with hard evidence. Green marketers should intensify their efforts to verify that they do not make claims that go beyond what they can support with data.
Here’s the rundown on the green trademarks processed by the USPTO this week:
- Green trade/service marks published for opposition: 49
Including the following:
- Green certification/collective marks published for opposition: None this week
- Green trade/service marks awarded registration: 61
Including the following:
- Green certification/collective marks awarded registration: None this week.
A recent New York Times article has created a stir in green circles because of its dreary implications for the commercial viability of green products during the current tough economic climate. As the reasoning goes, consumers have less money or are less willing to spend it, and so are they are going to shy away from purchasing a more-expensive green product when the non-green alternative will serve the same function at a lower price point. The Times article cites, as examples of this phenomenon, the case of Clorox’s Green Works line, which had $100 of sales in its 2008 debut and is now posting annual sales of just $60 million, and that of S.C. Johnson’s Natures Source lines of products, with different products in the line posting declines ranging from 35-78%. Some commentators have gone so far as to say that the article heralds the “death” of green products.
Looking at what the article actually says, the news is not so dire. For example, the article also says that advertising spend to support these green offerings has declined, sometimes down to zero, and so the decline in sales may be at least in part attributable to a failure to invest in marketing. Also, the article’s examples are only in the field of household cleaning products, specifically of cases where a ‘big blue-chip companies have tried to layer a green offering on top of their conventional offering.’ On the other hand, ‘niche players’ like Method and Seventh Generation show better performance in the household cleanser field, and other areas of green products also remain strong. Furthermore, the key disadvantage to green products, higher price, is not written in stone. It is possible, and will be increasingly possible going forward, to offer green products at competitive prices.
At a minimum, research indicates that consumer interest in green products remains strong. The EcoPulse study shows that 64% percent of Americans are searching for greener products, ironically, even as belief in global warming is decreasing. The ImagePower Green Brands Survey found that 54% of respondents stated that they would be willing to pay some premium for green products.
Is a bad economy a more challenging environment for green products? Of course, at least so long as the products remain more expensive. But it is far from fatal.
I am proud to announce that I have recently been awarded the LEED Green Associate credential by the Green Building Certification Institute. This credential reflects that I have “demonstrated knowledge and understanding of the green building practices and principles needed to support the use of the the Leadership in Energy and Environmental Design (LEED®) Green Building Rating System.™” I also earned the right to display the LEED Green Associate certification badge (see below, and on the right sidebar).
Earning this credential entailed an intensive preparation course, hours of self-study following the course, and the successful completion of a computerized examination on sustainable building practices and the application of the LEED system. I learned a great deal during this process. I would like to thank Greg Hamra of the Everblue training institute, not only for preparing me to successfully pass the exam, but for making the experience fun and informative. I strongly encourage all of you to pursue this credential.