Sustainability has evolved from a niche topic into a mandatory parameter for companies to stay up with the competition. Green advertising can now be found everywhere, for example as an organic label on products, through advertising that emphasizes sustainable production or packaging, or simply through graphic associations with the topic of sustainability. However, critical voices are getting louder, and the accusation of Greenwashing is making the rounds more and more frequently. But which rules do apply to Green Branding?

Greenwashing refers to PR methods with which companies and their products are given an environmentally friendly and sustainable image without this being objectively justified. Such advertising is conceivable with sustainability across almost all types of PR and in practically all industries. The greenwashing accusation focuses on vague or inaccurate advertising statements, the use of green logos and brands whose meaning remains unclear, or general associations with sustainability that are made without objective reasons.

Rise in litigation concerning Greenwashing

The issue of Greenwashing has meanwhile reached the courts and legal disputes about the use of Green Branding are becoming more common. In Germany, the cases are solved by applying the generally applicable legal norms, whereas rules deriving from Unfair Competition Law are of particular importance (UWG – Law against Unfair Competition). The ban on misleading advertising resulting from § 5 UWG is applied, if an advertising statement is linked to a specific promise that is not kept.

The issues that need to be dealt with in such cases can be explained when looking at the popular and often-used green claim of climate neutrality. After uncertainty about the understanding of this statement in the past, it is becoming apparent that German courts will expect zero-emissions of products that are advertised accordingly (see inter alia judgment of OLG Schleswig, Judgment of 30 June 2022, file number: 6 U 46/21 on climate-neutral garbage bags). Unlike the vague concept of environmental friendliness, the court considers the statement of climate neutrality to be verifiable. If CO2 emissions that derive from the manufacturing of the products have been offset, there is no misleading statement. The court also emphasized that such statements are of huge importance for the consumer and strict standards do therefore apply.

Alternative: Established organic labels and eco-seals

The case shows that admissibility of advertising with sustainability can depend on details. In addition, there are yet only a few reliable court decisions that refer to some very specific statements. For this reason, companies will also need to ask themselves whether they would rather use an established organic label or eco-seal. These have become particularly popular in the food and consumer goods sectors. For manufacturers, they offer a voluntary option for certification by a third party, for example to demonstrate compliance with a certain ecological balance sheet and thus, unlike interchangeable green marks, offer a guarantee of correctness for compliance with a certain standard. Eco-seals now exist all over the world. An example of this is the well-established German label Der Blaue Engel.

Originally, eco-labels were introduced by non-government organizations (NGOs). However, governments and state agencies have meanwhile discovered such seals for themselves. There even exist certification systems at EU level. One example is the EU Ecolabel that was introduced in 1992. It is awarded to products that have less negative impact on the environment than comparable standard products.

Introduction of new Green Branding?

As no one has to rely on existing eco-labels, companies may also establish their own sustainable label. Of course, this raises questions about admissibility under Unfair Competition Law, acceptance by consumers and the meaningfulness of the respective logo. Either an individual trademark or a certification mark can be used to obtain legal protection. Most logos with a green impact are registered as individual marks. The main obstacle in applying for an individual trademark is the avoidance of a distinctive character. If specific sustainability statements are included in the brand, it must be ensured that all products bearing the brand meet these requirements.

An alternative is offered via certification marks as they guarantee certain standards or a special quality. Unlike ordinary registered trademarks, they are registered by a person or company who has no intention to use the certification mark themselves. The owner of the certification mark rather allows third parties to use the mark if certain conditions are met. One of the prerequisites for the registration of a certification mark is the submission of articles of association to the responsible Trademark Office. This sets the standards in terms of product and quality properties and the terms of use are disclosed.

Whichever strategy a company chooses: Advertising with sustainability has outgrown its infancy and is now being questioned much more critically than it was a few years ago. It is advisable to carefully validate the use of claims or brands with a sustainability statement before using them.