Continuing the discussion on greenwashing, Part II of Dr. Sunanda Bharti’s post will deal with the relevant changes that can be made in the Indian laws to address the issue of greenwashing. Dr. Bharti is a Professor in Law at Delhi University and has written several guest posts for us, which can be viewed here.
[Part II] Going Green as a Garnish—A Brief Analyses of Green Trademarks Situation in India and related Ethos
By Dr. Sunanda Bharti
The author submits that while some amendments to existing laws may be necessary, a separate law to prevent greenwashing in India is not required, as sufficient legal provisions are already in place. Though for unregistered trademarks, stricter measures are needed, including consumer awareness campaigns, strengthening consumer protection laws, enhancing Advertisement Standards Council of India (ASCI) regulations, and finally combining these efforts to address greenwashing effectively.
They have been discussed below:
Trademark Law Provisions
Section 9 of the TMA, 1999 talks of absolute grounds for refusal of registration. The purpose is to maintain an equitable balance between granting entities the liberty to register a mark as a trademark and preserving its availability for use by other players in the market.
Section 9(1)(a) provides that the trademarks which are devoid of any distinctive character, that is to say, not capable of distinguishing the goods or services of one person from those of another person shall not be registered.
Common green terms like eco, sustainable, bio, herbal, and organic lack distinctiveness and are open to use by any proprietor under current law. However, the author submits that their use should be restricted, not due to non-distinctiveness, but because they should require adherence to specific conditions in order to be used. Treating them as certification trademarks would introduce order, reduce deception from false claims, and curb greenwashing, serving the larger public interest. A certification mark is a mark of conformity, validity or assurance which indicates that the product of the manufacturer rigorously complies with the prescribed/accepted quality standards of production.
It is hence proposed that section 9(1)(a) could be amended to include a proviso stating:
‘Provided that, trademarks comprising terms indicative of environmental or sustainable characteristics, such as ‘eco’, ‘bio’, ‘organic’, or similar expressions, shall not be registered, unless they fulfill the conditions of certification marks, ensuring compliance with prescribed standards to prevent public deception or greenwashing.’
This would ensure such terms are used responsibly and transparently.
Section 9(1)(b) talks exclusively of marks or indications which may serve in trade to designate the kind, quality, quantity, intended purpose, values, geographical origin or the time of production of the goods or rendering of the service or other characteristics of the goods or service; and hence shall not be registered.
Presently, the clause is understood to mean that descriptive expressions are non-distinctive per-se. Hence expressions of the kind mentioned above — the ones that qualify trademarks to be green, being indicators of ‘quality’ stand summarily disqualified from being registered, if used exclusively. This is good news for the ™ proprietor from business point of view but may be bad news for the consuming public/market if the intention is to greenwash. Because, the prohibition can only be circumvented by using the concerned green term alongwith some other feature and not exclusively. For example, while ‘Eco’, if exclusively used, may be hit by the bar of 9(1)(b), when seeking registration for say, furniture; ‘Beco’ may still be registered.
The author already has presented that green terms should be registrable only as certification marks. In the context of 9(1)(b) specifically, the author submits that this requirement should not be diluted even if the concerned green term is combined with one other feature or figurative element.
To reflect the suggestion, Section 9(1)(b) could carry a proviso as follows:
‘Provided that terms indicative of environmental or sustainable characteristics, such as ‘eco’, ‘bio’, ‘organic’, or similar expressions, shall not be registrable as trademarks, even when combined with additional features or figurative elements, unless registered as certification marks in compliance with prescribed standards.’
Hence, it is suggested that the usage of green terms should be kept in strict control. This is can be effectively done though Certification TMs. The idea is that green trademarks could only be accepted to operate as certification marks. Additionally, a certification mark also indicates the materials of production used and method or mode of manufacturing.
In India, in the context of environment sustainability, GreenPro and Ecomark are the two certification marks that enable the consumers to identify eco-friendly products.
It is relevant to mention that the Ministry of Environment, Forest, and Climate Change has, in Sept 2024, notified the Ecomark Rules, 2024, to introduce a more eco-friendly labeling system that aims to promote sustainable products across various sectors, including food, cosmetics, soaps, electronics, and more. While these rules are a step forward in encouraging environmentally conscious consumption, their effectiveness can be maximised only when they are integrated with the existing trademark regime.
Coming back to absolute grounds for refusal, in section 9(1)(c) the author asserts that governments must regulate the use of common/customary green terms through certification marks, ensuring that they are not applied arbitrarily. Like ISI or Hallmark, these terms should carry specific standards and meaning, preserving their credibility and curbing greenwashing.
Section 9(1) has a proviso which states that a trade mark shall not be refused registration if before the date of application for registration it has acquired a distinctive character as a result of the use made of it or is a well-known trade mark. In case of green terms, the author suggests that relaxation of this proviso should not apply. If greenwashing is to be effectively curbed, such measures are essential. Likewise, under section 9(2)(a), a mark shall not be registered as a trade mark if it is of such nature as to deceive the public or cause confusion. A green trademark that fakes the projection of itself as using planet-friendly, ecological and sustainable practices should be covered under the above.
Conclusion and Suggestions Round Off
A strategically guided vision is essential to effectively tackle greenwashing. It may be worthwhile to equip authorities with tools to differentiate between trademarks that merely claim to be green and those genuinely committed to sustainability, as trademark law currently lacks the power to make this critical distinction (see here).
Additionally, in India, since trademark registration is not mandatory, green terms can still be misused via unregistered trademarks. However, trademark law can rely on the ASCI Code to curb greenwashing. Misleading claims like 100% herbal with zero chemicals violate ASCI guidelines. Regulating such unregistered marks through ASCI enforcement can deter deceptive practices and build a trademark ecosystem where only genuine green claims survive.
Another recourse is section 2(47) of the Consumer Protection Act, 2019 which defines unfair trade practice to include making false or misleading claims—whether oral, written, or visual—about the quality, standard, or composition of goods or services. To prevent trademarks from legitimising or perpetuating greenwashing, trademark law must align with consumer protection principles. This ensures that eco-friendly terms (for instance green, natural, carbon neutral) used in trademarks are truthful, not deceptive, and backed by verifiable data. Otherwise, trademarks risk becoming tools for misleading environmental claims.
Public awareness must also be heightened through impactful, informative advertisements, encouraging vigilance and prompt complaints against misleading advertisements or shop hoardings making false green claims.
The awareness problem that exists amongst companies/businesses and consumers also springs from to the definition of what constitutes ‘green’—whether it implies that the product is made from recycled materials or is biodegradable, or that the business has a commitment towards reducing its carbon footprint; or that the business simply contributes a share of its profits/revenue to an environmental cause, or a combination of all these and more. In the absence of any clear directive, it would be unfair on part of any legal system to expect compliance. Likewise, it is only natural, in this vacuum, for the consumers to get swayed by whatever the businesses claim. India hence should work towards creating a comprehensive green policy by taking Trademarks at the forefront.