The Role of IP in Sustainability
Joanne Kong highlights the roles of certain IP rights in driving a sustainable future for brands.
The rising interest in environmental issues in recent years as evidenced by various “go green” campaigns such as those to reduce the use of plastic in the F&B sector or the popularity of environmental documentaries such as David Attenborough’s “A Life on Our Planet” has contributed to the major shift in consumer behaviour. Historically, brands have promised quality of the product, service and experience but consumers these days, especially the younger generation, are increasingly becoming more interested in the social and environmental behaviour of companies as well as their ethical values.
Research and studies have shown that more and more consumers are willing to pay a higher price to support brands that adopt values which align with their personal values. Fashion companies such as H&M’s Conscious Collection use eco-friendly fabrics to reduce their environmental footprint while technology companies such as Apple have changed their production processes in a bid to become carbon neutral. To stay relevant, it is therefore important for brands to include sustainability in their business models. This article seeks to cover some IP strategies and their role in sustainability.
When it comes to technology and innovation, including green technology, patents are no doubt at the forefront of IP protection. Available for any new invention which is industrially applicable, patents are important to exploit an invention and can be monetised via assignments and license contracts. In Malaysia, patent protection is available for 20 years. Due to the need for disclosure of the patent claims and specifications however, certain companies may choose to dispense with such registration which may also be costly and keep such methods as trade secrets.
Companies should however also be aware that Article 27(2) of the TRIPS Agreement of which numerous countries are member to, including Malaysia, provides that certain inventions which are necessary to protect public order or morality, including to protect human, animal or plant life or health or to avoid serious prejudice to the environment, may be excluded by a member country from patent protection. Aside from commercial considerations and the preference for secrecy, it is therefore always recommended to consult a patent expert in the relevant field of interest on the best strategies to ensure that the protection of such inventions is not compromised.
Aside from functioning as indicators of origin, trademarks may also serve to convey brand values or certain expectations or standards which come along with a product. For example, THE HONEST COMPANY by Jessica Alba aims to stay true to its values of being transparent about its methods of creating safe, effective products while making conscious efforts to promote sustainability. It is also common for brands which place a strong emphasis on their eco-friendly or environmental qualities to use the colour green or include environmental words or symbols in their trademarks such as the textile company Lenzing which is known for its TENCEL range of fabrics which are made of natural components from sustainably harvested trees.
Certification marks and collective marks are also useful to indicate that a product meets certain standards or characteristics. Certification marks may be used by anyone who complies with the standards prescribed by the owner of the mark while collective marks may only be used by particular members of the organisation which owns such marks. In Malaysia, the Penang Green Council registered the PENANG GREEN OFFICE certification mark which is available for use by local organisations which adopt the 5 sustainability principles as determined by the Council. Collective marks recently became registrable in Malaysia with the introduction of the new Trademarks Act 2019 on 27 December 2019 but it appears that the few existing applications are all still pending.
Copyright is arguably the most inexpensive form of IP since it subsists automatically upon creation. While there is no compulsory registration process in Malaysia, copyright owners may submit a voluntary copyright notification to MyIPO which is prima facie evidence of ownership and evidence of the date of creation of such copyrighted works. It is inevitable that various software and codes will play an instrumental role in the creation of green technology and for such works, copyright will be the most important form of protection.
While it can be expected that green branding will be embraced by most brands as part of their long-term sustainability goals, brands must remember to remain authentic and stand for values that they truly believe in. False marketing tactics to deceive or mislead consumers into believing that such products are more environmentally friendly than they really are would otherwise not only create a culture of greenwashing but would undermine the value of their IP and in the case of trademarks, potentially expose such marks to invalidation actions. If carried out strategically with true authenticity, a brand’s sustainability efforts will help to build better brand image, generate consumer loyalty, reduce pressure from environmental regulators and reduce long term production costs.
Joanne is a Senior Associate at Wong Jin Nee & Teo. Her practice predominantly focuses on end-to-end trademark prosecution, media and advertising clearance, and other compliance matters.