Two companies recently qualified to use a couple of different certification marks to further their green branding efforts.  Hewlett-Packard (HP) just announced that all of its business PC, printing and server products shipped in the U.S. and Canada have qualified for the Environmental Protection Agency’s (EPA) SmartWay certification. 

In a previous post I discussed the SmartWay program, which certifies low environmental impact vehicles.  Earlier this year, all of HP’s consumer products were also SmartWay certified.  This means that now both HP’s consumer products and business products are shipped by SmartWay-certified surface transportation carriers, and the SmartWay logo will appear on HP’s product packaging.

Massachusetts packaging company Be Green Packaging (BGP) has qualified for the Cradle to Cradle certification, which signifies that a product meets certain sustainability criteria, including being wholly recyclable.  

Environmental and sustainability consulting firm McDonough Braungart Design Chemistry (MBDC) owns several certification mark applications for the Cradle to Cradle logo (shown above) and the word marks CRADLE TO CRADLE CERTIFIED and CERTIFIED CRADLE TO CRADLE.  MBDC also owns a trademark application for CRADLE TO CRADLE for paper and packaging goods.

Interestingly, MBDC’s attempts to protect similar marks as both certification marks and ordinary trademarks has created a dilemma for the company.  Under U.S. trademark law, an applicant can’t get a certification mark registration if the applicant produces or markets any of the goods or services to which the certification mark is applied. 

Accordingly, in an office action on MBDC’s application for the CRADLE TO CRADLE CERTIFIED certification mark, the U.S. Patent & Trademark Office (PTO) required that MBDC abandon its CRADLE TO CRADLE trademark application before the certification mark can be registered (cradleofficeaction.pdf).  So MBDC has to make a business decision whether federal protection is more important for its certification program or its paper and packaging brand.

In addition to using MBDC’s certification mark, BGP has filed an application to register its own BE GREEN PACKAGING trademark, and the application seems to be sailing through the PTO without a hitch.  In view of the problems faced by PNC Bank’s GREEN BRANCH application and , one might have expected a rejection on the ground that the mark is merely descriptive of environmentally friendly packaging services.

Instead, although the trademark examiner stated that “green packaging” is descriptive wording, she only required that BGP disclaim any rights to those words apart from the whole mark (begreenofficeaction.pdf).  Apparently, like “APPLE” in GREEN APPLE CLEANERS, the non-descriptive element “BE” in BE GREEN PACKAGING allowed the mark as a whole to clear the descriptiveness hurdle.

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