Archive for July, 2011

S.C. Johnson Settles Greenlist Greenwashing Suits

S.C. Johnson & Son, Inc. has announced that it has settled two Federal class action lawsuits brought against it, one in California and one in Wisconsin, related to the use of its GREENLIST mark (shown below) on bottles of its Windex®-brand cleaning products.

 

The suits alleged that the presence of the mark misled consumers into believing that the products had been certified as environmentally-friendly by an objective third-party, when in fact the GREENLIST mark is not a certification mark at all but rather S.C. Johnson’s own trademark for use on its own products. Take a look below at the logo and how it appeared on the product. Would you have thought you were looking at a certification?

 

For its part, S.C. Johnson maintains that the mark simply signifies that the product has achieved a green rating in a self-imposed and self-operated rating system, and that it is entitled to use the mark in that manner.  It also maintains that the product ingredients are in fact not harmful to the environment. However, the company settled the suit, acknowledging that it “could have been more transparent about what the logo signified.”  The exact terms of the settlement are confidential, but S.C. Johnson will discontinue use of the GREENLIST logo on Windex bottles and will pay an undisclosed sum of money.

 

The lesson here for green advertisers is that they should take care that their own marks cannot reasonably be mistaken for third-party certifications. This can be accomplished both by avoiding logos that appear like seals, and through highly-visible disclosure of the nature of any “internal” rating system vs. a true certification.

 

On a side note, S.C. Johnson has just started a trial program for refillable Windex, which, if successful, will cut down significantly on product packaging. However, it remains to be seen in consumers will be willing to make the switch.

Mark Image  

 

 

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Weekly Round-Up of New Green Trademarks-Week of 7/5/2011

Here’s the rundown on the green trademarks processed by the USPTO this week:

 

  • Green trade/service marks published for opposition: 57

 

Including the following:

 

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  • Green certification/collective marks published for opposition: 4

 

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  • Green trade/service marks awarded registration: 60

Including the following:

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  • Green certification/collective marks awarded registration: None this week.

 

 

 

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Sustainable Marks’ Methodology for Counting Green Trademarks

Readers sometimes inquire as to the methodology employed in the preparation of the Weekly Round-Up of New Green Trademarks, and so I thought I would take some time today to describe that in detail.

 

Each week, the United States Patent and Trademark Office (“USPTO”) issues a document entitled the Official Gazette for Trademarks. The Official Gazette contains, among other things, a listing of each trademark (as used herein, the term trademark encompasses trademarks, service marks, collective marks, and certification marks) application that has been published that week, which begins the 30-day third-party opposition period under U.S. law, as well as a listing of every trademark application that is maturing into a registration on either the Principal or Supplemental trademark registers that week.  Generally, applications are only published or registered on the Tuesday of each week. Applications that are ultimately refused by the Examiner do not appear in the Gazette.

 

Each such published application or new registration shown in the Gazette is reviewed and the “green” marks are tallied. The tally is counted by the number of classes of goods and/or services in the application, so for example, the same mark in three classes will count as three marks. A separate tally is maintained for:1) published trade and service marks combined; 2) published collective/certification marks combined; 3) newly-registered trade and service marks combined; and 4) newly-registered collective and certification marks combined. For purposes of the tally, no distinction is made between marks registering on the Principal Register vs. the Supplemental Register. Representative samples among the green marks are selected for display in the post.  A mark is considered green if it conveys an impression that the good or service connected to the mark has an environmental benefit, or is in an immediately recognizable green field (photovoltaics, recycling, etc.). If there is uncertainty as to whether a green message in intended, the file history or website of the applicant/registrant may be reviewed, but in no event is a determination made as to whether or not the good or service actually is good for the environment. Rather, the inquiry is directed to whether a consumer viewing this mark would get the impression that an environmental benefit is being suggested.

 

Naturally, there is inherent subjectivity in this inquiry. What is “green” can elude precise definition, and there is not always consensus on what ought to qualify. Two people reviewing the same set of marks could arrive at two different tallies, and even the same individual might arrive at slightly different numbers should they repeat the review. A single individual, not a focus group, conducts the count. For this reason, the precise tally figure and small fluctuations in the figures across time are not very instructive.

 

However, broader trends in the figures can shed light on the interest level in pursuing green marks and the strength of the green economy (although there is some “lag” in this figure, as it typically takes six months or more from the filing of a trademark application to appear in the Gazette) the ability of green trademarks to pass examination, and the rate at which applications filed as “intent to use” vs. “in use” are ultimately deployed in the marketplace.  It is also hoped that as Sustainable Marks approaches its first anniversary and accumulates an ever-growing store of data, that comparisons from one time period to another will become instructive.  In addition, trends in different sectors can sometime be observed. For example, an abrupt spike in applications for LED lighting was seen some time ago.

 

In short, the Weekly Round-Up is a useful tool for observations about the general state of green enterprise, but the  figures should not be relied on for a high level of precision.  Please feel free to contact the author with questions about the Round-Up methodology, or to call attention to any error. In addition, applicants are invited to contact the author to call attention to a mark about to be published or registered, so that it may be included in the Round-Up.

 

 

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Weekly Round-Up of New Green Trademarks-Week of 6/28/2011

Here’s the rundown on the green trademarks processed by the USPTO this week:

  • Green trade/service marks published for opposition:   44

Including the following:

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  • Green certification/collective marks published for opposition:  None this week

 

  • Green trade/service marks awarded registration: 59

 

Including the following:

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  • Green certification/collective marks awarded registration:  None this week.

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