Greenwashing in Context and other Green IP at AIPLA Orlando

I will be speaking at the American Intellectual Property Law Association’s (AIPLA) Mid-Winter Institute next month in Orlando as part of a panel on green IP.

The other speakers on the panel - called “IP Rights in a Green World:  Opportunities, Challenges and Hazards” – are Douglas Pearson of Jones Day in Washington, DC and Maureen Gorman of Davis McGrath in Chicago. 

Mr. Pearson will speak on potential threats to patent rights in green technologies, Ms. Gorman will cover green branding issues in a presentation entitled “The Future’s so Green, I Gotta Wear Shades:  ‘Greening” Your Brand Without ‘Greenwashing’ It,” and I will provide an overview of greenwashing and anti-greenwashing legal activity (see the Institute program here).

Entitled “Greenwashing in Context:  Commercial Consumers, Cleantech Counterfeiters and Eco-Mark Enforcement,” my presentation observes that most discussions of greenwashing are unduly restricted to cases in which an individual consumer, a class of consumers, or a consumer watchdog such as the FTC challenges a company making false or misleading green claims about its products or services.

To put greenwashing in its proper context we have to consider a wider range of cases, some of which are not immediately recognizable as instances of greenwashing.

To do so requires looking beyond individual consumers to commercial consumers and beyond green brand owners to counterfeiters of clean tech products and eco-mark infringers. 

From this broader vantage point, and keeping in mind the definition of greenwashing – making false or misleading claims about purportedly environmentally friendly products, services, or practices – we are able to recognize, observe and understand greenwashing in its proper context.

For example, the eco-mark infringers hawking counterfeit Suntech solar modules are not typically viewed as greenwashers, nor is Suntech’s eco-mark enforcement campaign against them seen as anti-greenwashing activity.

Similarly, the commercial litigation between Cogen and Hess over misrepresentations about the energy efficiency of cogeneration equipment is not immediately recognized as a greenwashing case.

But they are instances of greenwashing and anti-greenwashing legal actions and are at least equally, if not more, important than the false or misleading claims directed at individual consumers.

Commercial “consumers” of green products and services such as renewable energy project developers, plant operators, utilities, retailers, distributors, and installers have a huge impact on implementation of clean technologies.  As such, it is crucial that they receive genuine products and accurate service information.

Thus, my presentation argues that studies of greenwashing should embrace the proper, broad context that includes green commercial consumers.

Registration information for the AIPLA Mid-Winter Institute is available here.

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Eric Lane

Eric Lane, the founder and principal of Green Patent Law, is an intellectual property lawyer and registered U.S. patent attorney in New York and is a member of the bar in New York and California. Eric has more than two decades of experience working with wind, solar PV, CSP, biofuels, and geothermal, energy storage technologies, carbon capture and sequestration, medical devices, data communications, mechanical, chemical, internet and software.