Greenwashing and IP in Argentina
‘Greenwashing’, the act of engaging in disinformation in order to present an environmentally responsible public image, has increasingly drawn the attention of IP specialists in Argentina.
The activity is especially seen in connection with fashion, which has been singled out as the second most polluting industry (after oil) because of the materials used (dyes, lots of water) and the working conditions.
In Argentina there is a host of legal provisions—constitutional, civil, criminal, administrative, etc—addressing this issue.
To begin with, Art. 42 of the National Constitution states that consumers have the right “to adequate and truthful information”.
In turn, the Civil and Commercial Code provides that the supplier must provide the consumer with truthful and detailed information regarding the essential features of the goods and services which are being provided (section 1100); forbids deceptive advertising, whether comparative or not (section 1101); and grants consumers the right to enjoin deceptive advertising (section 1102). The consumer Protection Law No. 24,240 includes a similar provision (section 4, from where section 1100 of the Civil and Commercial Code was taken).
Emergency Decree No. 274/2019 on Unfair Competition, issued on April 17, 2019, defines as unfair competition “deceptive acts about the nature, mode of manufacture, main features and conditions of goods or services” (section 10) and forbids “any kind of presentation, advertising or propaganda that by means of inaccuracies or concealments may lead to error, deception or confusion concerning the features or properties, nature, origin, quality, purity, mixture, quantity, use, price, marketing conditions or production techniques of movable or immovable goods or services” (section 11).
Section 1 of Antitrust Law No. 27,442, enacted on May 9, 2018, forbids “agreements between competitors, economic concentrations, acts or conducts related to the production and exchange of goods or services whose objective is to limit, restrict, falsify or distort competition or access to the marks”, and may also encompass deceptive practices.
And under section 159 of the Penal Code, it may constitute a criminal offence when deceptive advertising is part of machinations or schemes to divert, for the benefit of the advertiser, the clients of another enterprise.
There are other provisions, statutory or regulatory, dealing with specific products or activities.
For instance, Law No. 25,127 on Ecologic, Biologic or Organic Production, issued 13 September 1999, which provides that to qualify as such the raw materials, intermediate products, finished products and by-products must be the result of a system employing the practices indicated the regulatory provisions implementing said law.
According to section 10 of Regulatory Decree No. 206/2001, issued February 2, 2001, “the terms ‘biological’, ‘ecological’ or ‘organic’, ‘eco’ or ‘bio’ may not constitute trademarks or form part of a trademark applied to agricultural products, such as food, fibre, wood, furniture or paper” (but granted registrations issued before enactment of law No. 25,127 are excluded from this restriction).
As regards IP, section 3, paragraph d), of the Argentine Trademark Law, bars the registration of deceptive trademarks, namely those which may lead “to error regarding the nature, properties, merits, quality, production techniques, function, origin, price or other characteristics of the goods or services involved”.
Naturally, article 10 bis of the Paris Convention, is also applicable here, as Argentina is a party to said treaty.
Based on the above-mentioned statutory provision, the National Institute of Industrial Property (INPI), when performing the substantive examination of a trademark application, may refuse the grant of a registration that is deemed to be deceptive.
As a rule, however, this condition is very difficult to ascertain ex ante, because deceptiveness of a trademark nearly always only becomes apparent when it is used in association with a specific product or service.
Consequently, such objections from the INPI are rare. Nonetheless, third parties having a legitimate interest to do so (usually competitors affected by said use) may bring an action seeking to cancel the registration of a deceptive trademark, and so can the INPI.
In sum, there are several rules to protect consumers from the dangers of greenwashing. As IP lawyers we must advise our clients who own trademarks not only when they are seeking the registrations but also when they are actively using them in the marketplace, in order to avoid problems, especially those caused by advertising hyperbole.
Raquel Flanzbaum is a founding partner at Ojam Bullrich Flanzbau. She can be contacted at: rflanzbaum@ojambf.com
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