The fashion industry is sadly known for being one of the most polluting industries in the world, being responsible for about 10% of global greenhouse gas emissions. There are several major factors contributing to this not-to-be-proud achievement, including depletion of water resources, pollution from textile factories, and merchandise waste.

However, in the last years, young consumers have started prioritizing sustainability efforts in their purchasing decisions. In fact, 74% of millennials and 62% of Gen Z prefer to buy from sustainable brands and are thus willing to pay more for sustainable products. Therefore, consumer demand has caused a noticeable and welcome shift toward sustainability in the fashion and apparel industry. As a consequence, sustainable fashion and transparency about those efforts have now acquired an increasingly importance.

In order to comply with consumers’ requests to make more conscious purchasing choices, many brands have committed to creating limited edition products, capsule collections or even entire lines that are sustainable, namely made out of ethically sourced or recycled materials. The increase of consumer and investor awareness of the Environmental, Social and Governance (“ESG”) elements of businesses is helping to grow the sustainability market, which, according to KMPG, was expected to reach $150 billion by 2021, with fashion playing a relevant role, as “sustainability” continues to be “a key pillar for business growth” regardless of the industry.

As consumers – and the market – demand increasing transparency and sustainability from the fashion industry, several companies have adopted new techniques in order to position themselves and their products as “sustainable”. Among all, it is interesting to understand how companies are investing in re-branding or in introducing new brands by affixing sustainability-centric logos to their goods so that consumers are aware about the origin and the nature of the products at play.

Several luxury brands chose to adopt new logos to demonstrate their commitment to become more sustainable. Logos, as trademarks, identify the origin of the products, but they also convey brand values, namely the missions, the emotions and the purposes that a brand stands for. For this reason, trademarks are particularly effective in order to communicate brand shift towards sustainability.

For example, as part of the brand’s SS 2021 menswear collection, Louis Vuitton adopted – and filed applications for registration for – an Upcycling Signal Logo. The logo consists in the redraw of the monogram “LV” to resemble the twisting arrows of the recycle logo, for products that are either upcycled or contain at least 50% recycled and bio-sourced materials. Virgil Abloh used the “sustainable” version of the monogram to release a pair of all-white sneakers made from corn-based faux leather, and recycled polyester with at least 90% of the product coming from recycled or bio-sourced materials.

Louis Vuitton is not the only luxury brand leaning into the sustainability re-branding. In fact, several other fashion brands created a “green” version of their logos. As of November 2021, in connection with a collaboration with the streetwear brand Palm Angels, Moncler used a redraw version of its logo to indicate products made “using fabrics crafted from low impact materials such as Econyl®, a regenerated nylon derived from ocean and land-based waste – organic cotton and recycled polyester, and buttons and zips are made with recycled metal and brass”. In particular, the “sustainable” logo consisted in the redrawing of the lines of the “M” of Moncler as an infinite loop of arrows resembling the recycle logo.

Also Prada in 2019 adopted – and filed application for – a “green” trademark for use in connection with a collection from recycled and Econyl®, which is a proprietary material made from upcycling industrial nylon waste like carpets or fishing nets. The trademark consists of the words Prada and Re-Nylon with the iconic Prada’s triangle made with arrows, thus resembling the recycle logo.

Lastly, also Valentino, in January 2022, presented the “Open for a Change” sneakers as part of the Spring/Summer 2022 collection which “are re-designed and re-dedicated in a spirit of open innovation with more conscious-driven ethos”. In particular, the sneakers are adorned with a re-designed “green” logo with the iconic “V” at the center, circled by two green arrows, which resemble the recycle logo.

However, while the decision to use “green” logos, trying to communicate sustainability or ESG elements, may be effective under a reputational and commercial point of view, brands should be aware that regulators are nowadays paying much more attention to this space, given that there are strict rules to be followed.

Article 21(2) of the Italian Code of Intellectual Property (“CPI”) establishes a prohibition against using the trademark in such a way as to mislead the public about “the nature, quality or origin of the goods or services, because of the manner and context in which it is used”. This prohibition refers to the deceptiveness of the messages that the trademark carries by interacting with the advertising context, packaging, and labeling of goods. Therefore, what is deceptive is the “indirect” meaning, that is, the message that the trademark takes on in relation to the context in which it is used. This can be the case for a trademark that is linked in the public’s perception to a certain production source (although it does not in itself communicate any information about the origin), but actually takes on a precise meaning related to the origin of the products. Indeed, if a brand decides to register a “green” trademark in connection with a collection which is allegedly sustainable, but without the collection actually being inspired by these green principles, then pursuant to Articles 14(2)(a) and 26(b) of the CPI, the trademark can be revoked.

In this regard, it is relevant the Italian Supreme Court decision No. 6234/2009 on the trademark ”BIO-ENE”, characterizing a range of plant-based products. The Supreme Court held that the ”BIO-ENE” trademark was likely to mislead the final consumer because “the indications contained in the trademark, due to the strong semantic and evocative scope of the word ‘bio’ induced the consumer of average diligence to believe, despite the association with the term ‘ene’ and the graphic symbol, that the products characterized by that trademark were organically produced, not already simply vegetarian-inspired, as in fact they were”.

To conclude, brands should keep in mind to be cautious when adopting sustainability-motivated logos. Indeed, in order to avoid reputational harm and backlash, brands must be transparent, trying not to overstate their ecological commitment, especially when it is totally absent.

If you would like to know more about this topic and fashion law in general, please contact carolina.battistella@dlapiper.com.