26 September 2022TrademarksSarah Speight

MARQUES: How to be a truly sustainable, protectable brand

Consumer concern over environmental impact of products is here to stay | Naming a brand, enforcement of IP, and greenwashing discussed by panel | Clyde & Co | Kilburn & Strode | Ecoalf.

How can brands become more sustainable?

This issue was among those discussed in a panel session at the MARQUES 36th Annual Conference in Madrid last week, September 21, titled ‘Branding alternative products?’.

Speakers mooted the particular challenges of branding innovative products that claim to be sustainable, ethical and responsible, drawing upon case studies from the fashion and food industries.

Chairing the panel was Mark Devaney, partner at Clyde & Co, based in Dubai, and chair of MARQUES’ Intellectual Asset Management Team.

He was joined by Rowena Tolley, partner and trademark attorney at Kilburn & Strode in London, who leads the firm’s Food & Drink sector group; and Carolina Álvarez-Ossorio Speith, chief marketing officer of sustainable fashion brand Ecoalf.

Álvarez-Ossorio Speith gave a presentation from Ecoalf, starting with a summary of the global environmental situation—including the millions of plastic bags, discarded nylon fishing nets and other marine pollution such as drinks cans that lie uncollected at the bottom of the ocean.

She emphasised the problem of microplastics and stated that Ecoalf believes there is already more plastic in the sea than fish.

Álvarez-Ossorio Speith said that to become a truly sustainable fashion brand, Ecoalf has developed more than 500 recycled fabrics that are the same quality as non-recycled fabrics.

The firm recycles different types of waste using low-impact production methods, such as plastic bottles from land and sea, discarded fishing nets, used tires, post-consumer coffee, and more traditional fabrics such as cotton, wool and cashmere.

No planet B

She explained the ethos behind the Ecoalf brand, which was founded in 2009 by Javier Goyeneche in Spain and whose brand motto is the well-known phrase “Because there is no planet B.”

Álvarez-Ossorio Speith explained that Primark had last year stocked kids’ T-shirts using the trademarked phrase, but enforcement wasn’t needed because the budget fashion brand removed the item from sale and sent a letter of apology to Ecoalf.

However, she emphasised that Ecoalf’s aim is to amplify the core message of the motto, but it is important to challenge when the phrase is being used by a company whose values do not align with the meaning of that message.

“Now more than ever, we have a responsibility that goes beyond fashion and to do things differently,” said Álvarez-Ossorio Speith. “Fashion needs to be about doing what is right and feeling good about it. What you do is not enough; how you do it and how much waste you generate is more important.

“And of course, the current fashion business model doesn't work. We have the creativity and the people and the resources to change this."

Consumer attitudes

Panel speaker Rowena Tolley shared an extract from Deloitte’s 2022 survey on sustainability, and consumer attitudes and behaviours around sustainability. While the survey was based on UK consumers, Tolley said that the results can be extrapolated to different countries.

The percentage of the UK population who had chosen brands that have environmentally sustainable practices or values was 40%, up six points from last year. Those who have chosen brands that have ethical practices or values was 37%, up seven points from last year.

The percentage who have stopped purchasing certain brands or products because of ethical or sustainability concerns was 34%, up by six points. And the percentage of consumers who had contacted a brand to raise an issue on sustainability or ethical concerns or practices was 7%.

Tolley said: “7% sounds quite small, but that's still four and a half million people, which is really quite a hefty number.

“I think it's very clear that consumers are making increasingly conscious decisions around sustainability. And whether companies want to or not, they have to be more sustainable or at least be seen to be more sustainable.

“This is not a passing trend. This is something that is very much here to stay and grow.”

Protecting alternative brands

Panel chair Mark Devaney posed the question, “When you're looking to build a brand in this space, what are the challenges to overcome from your perspective, [in terms of] how to develop a new brand that has an accessible brand name, but also [doesn’t attract] issues of registrability?”

Tolley said there are three main challenges when it comes to alternative branding, the first being choosing a name.

“If you're positioning yourself as an alternative brand, you'll want to convey to consumers that your values are in the choice of name, so that inevitably leads to descriptive or slightly less distinctive elements being chosen in a name.”

This is something that Ecoalf came up against, explained Álvarez-Ossorio Speith, and were advised by lawyers to make the brand name more distinctive. They did this by registering “Ecoalf 1.0”.

Tolley discussed a selection of brands that she had either worked with, or that had come onto her radar in the past six or 12 months. She said they are all distinctive and registered, but aspects of them are descriptive.

“When you're essentially fishing in a more limited pool, because other people also want to use and register those kinds of elements, from my perspective it makes it that much more challenging to find a strong, protectable, registrable, clear brand in the first place. And that's the first challenge.”

The second challenge, she said, is when it comes to enforcement. “For all the trademark attorneys here we know that the more distinctive a trademark is, the narrower scope of protection.”

Tolley pointed to the example of Oatly v PureOaty in the UK last year. “Oatly failed in their attempt to enforce their rights against PureOaty. If you choose a brand that has descriptive connotations, as we know, it's harder to enforce.”

The third challenge, she said, is greenwashing, which she said the authorities are  “increasingly cracking down on”. “They're looking at choices of names, colours, logos, all these things. So if you are positioning yourself as an alternative brand, I think you need to be really careful that you're actually genuinely what you give the impression of being.”

The rise of collaborations

Tolley discussed the rise of what she said is the ‘sustainable stable’ over the past five or ten years, with the aside: “We might have coined a new kind of trademark term.”

She also pointed to the rise or return of the house mark, highlighting the importance of how companies position themselves.” It's all about the values of that company,” she explained. “If consumers are buying into those values, they will buy the products assuming that the products are also sharing those values.”

Considering how brands convey their messages through storytelling rather than any mention of the products they sell, Tolley raised concerns over IP protection, especially when there are collaborations with brands with shared values.

“For trademark attorneys like us, it's the usual challenges. Is there a new brand being created here that needs to be cleared and protected? Is it an existing brand that's moving into new spaces and new products and services, which again, might need more protection?”

She said that the “usual thorny issue of ownership when you've got these kinds of collaborations” arise. “Who owns the IP in the final product [such as ads]?”

Tolley stated that “it's absolutely critical” for trademark attorneys to “force those discussions early on”. “Who is going to own the IP? Is it locked down in the agreement to avoid future disputes?”

She highlighted the issue of who is partnering with who, which she said has become more relevant in IP protection. “We're already seeing questions on sustainability and CSR in pitch documents that you see coming through,” she said.

“You see which brands are choosing which companies to work with—we're only going to see more of this, especially if you're pitching to a B Corp [certified] company. For example, they are obliged to look more carefully at their supply chain and who they're working with.

“I think this is only going to rise.”

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