There are two new green certifications to report.  First, FoodServiceWarehouse.com (FSW) has launched the Going Green Program, a comprehensive green certification program for commercial kitchens. 

The program includes a free certification process, as well as educational resources and incentives for kitchens to go green, such as extended warranties on energy efficient equipment. 

How much do commercial kitchens impact a building’s energy consumption?  This Matter Network story reports that, according to the U.S. Environmental Protection Agency’s Energy Star program data, commercial buildings with commercial kitchens use about 2.5 times more energy per square foot than buildings without kitchens.

Last month FSW filed a certification mark application (greenkitchenapp.pdf) with the U.S. Patent & Trademark Office for its CERTIFIED GREEN COMMERCIAL KITCHEN logo eco-mark (top).

 

From kitchens to the internet, where CO2Stats offers the Green Certified Site carbon offset program for web sites.  Subscribers to the CO2Stats program insert a piece of HTML code which calculates the carbon emissions of the site.

The calculation includes both the energy used to run the web site and the power used by visitors to the site.  Based on the emissions calculation, CO2Stats buys renewable energy certificates for subscribers that offset the carbon footprints of their web sites.

Of course, the Green Certified Site certification is something I absolutely must have for this site, so I subscribed.  I just need to plug in that HTML code to green Green Patent Blog.  Too bad I don’t run a commercial kitchen…

 

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.

 

Recently, IPLaw360, an online intellectual property law newsletter, published my article, “Protecting Green Brands in the Eco-Mark Era” (eco-marksarticle.PDF).  The article ties together many of the themes about eco-marks that I’ve discussed in this space.

In particular, the article presents some considerations and strategies for protecting brands that reflect environmentally-friendly products, services or business practices. 

Those include determining whether the green ways are part of the brand owner’s core business (if they are, it may be more difficult to get a U.S. trademark registration and a certification mark may be a better path), artful drafting of the listing of goods and services to omit the green aspect if possible, and adding a non-descriptive element to the mark if the brand includes an environmentally-descriptive term.

The article also explains the concept of the certification mark, which is owned by the certifying organization, not the business using the mark.  Generally, a business contacts a certifying organization and requests evaluation of its goods or services, and if they pass muster, the certifying organization permits the business to use the certification mark on its products.

Finally, the article warns against the temptation of “greenwashing” and provides some examples of the growing number of complaints about deceptive green advertising and increased monitoring and enforcement by both government agencies and the eco-conscious blogosphere.

I hope the article will be of some use to those seeking protection for their green trademarks.

 

I recently received a second office action (secondofficeaction.pdf) from the U.S. Patent & Trademark Office (PTO) regarding my application to register the GREEN PATENT BLOG eco-mark.  The trademark examiner rejected the application again on the same ground – that the mark is “merely descriptive” of the services offered.  The examiner re-stated his position that “GREEN” describes clean tech subjects, “PATENT” is a type of intellectual property, and “BLOG” is a generic term.

 that the mark is not merely descriptive because “GREEN” has many meanings, but the examiner rejected that argument, stating that the descriptiveness inquiry focuses on the relevant services.  That is, the fact that “GREEN” may have different meanings in other contexts does not control here because the term immediately describes Green Patent Blog’s (GPB) services of providing information on clean technology and renewable energy.

The office action included attached evidence purporting to show “green patents” used in a descriptive manner, including some GPB pages, and the examiner seemed to relish quoting my own words against me (maybe I should sign him up for free e-mail alerts!). 

Incidentally, I knew that referencing “green patents” in my posts could provide ammunition to the examiner, but decided that the importance of generating Google hits for that term outweighed the downside of compromising my trademark prosecution.

The office action was made “final,” which means I can now appeal to the Trademark Trial and Appeal Board.  Alternatively, I could file another response with the examiner.  I’m mulling my options now and will of course report on the next step in due course.

The U.S. Environmental Protection Agency’s (EPA) SmartWay program educates consumers on the environmental impact of various transportation options.  The program includes a ratings system for vehicles, information on renewable fuel options and a project to reduce emissions in the freight and transport vehicle sector.

The centerpiece of the SmartWay program is the personal vehicle ratings and certification system.  The certification system features the EPA’s Green Vehicle Guide, which scores vehicles based on air pollution and greenhouse gas emissions.  Vehicles that achieve a high enough score are SmartWay certified. (see the Greenbiz article)

A certifiable score means at least 6 out of a possible 10 for both the air pollution rating and the greenhouse gas emissions rating and that the two ratings combined add up to at least 13.  The air pollution rating is determined by how much the vehicle’s tailpipe emissions contribute to smog and health issues.  The greenhouse gas score is based on carbon dioxide, nitrous oxide and methane emissions and is tied to the fuel economy of the vehicle.

The certification program uses the SmartWay logo, and the EPA owns two eco-marks for the logo.  Both incorporate a leaf with a road running along the stem and through the center of the leaf with dashed divider lines. 

U.S. Registration No. 3,220,604 (‘604 registration) (604registration.pdf) issued in March of 2007 for a certification mark that includes the words “US EPA Certified SmartWay” alongside the leaf component (see below).  The listing of goods covers “[v]ehicles, namely automobiles and trucks.”

In July of last year, the EPA also applied to register a SmartWay service mark for educational materials and services and public awareness relating to cleaner and more efficient transportation options.  U.S. Application No. 77/225,038 (‘038 application) (038application.pdf) includes the same leaf component and the word “SmartWay” without the “US EPA Certified” language (pictured at the top of this post).

One interesting sidenote is that the EPA had a little trouble with its ‘038 application, which was rejected for being too similar to the Wisconsin Department of Transportation’s (WDOT) SmartWays trademark registration (smartwaysregistration.pdf).  The EPA overcame this problem by getting WDOT’s consent to the EPA’s use of its mark and entering into a concurrent use agreement with the state agency (responseandconsent.pdf).

In navigating the SmartWay web pages and discovering that the car I drive is SmartWay-certified, I noticed that the EPA seems to be misusing its SmartWay eco-marks.  The ‘604 registration logo (the one that includes the word “US EPA Certified”) is the certification mark, so it should be the one used to identify certified vehicles. 

However, the ‘604 registration logo is conspicuously absent from the vehicle certification sections of the EPA’s web site, which instead feature the simpler ‘038 application mark (pictured at the top of this post).  In addition, when one searches the Green Vehicle Guide, the leaf component alone appears beside the SmartWay certified vehicle listings. 

While the leaf component is arguably the key feature for consumer recognition purposes, the EPA probably should keep its SmartWay trademark house in better order and be more strict about using its certification mark for certification purposes.

Green Energy Resources (GER) provides wood fiber fuels, including wood chips, sawdust and biomass for various applications, including power production and for raw materials for cellulosic ethanol production.  GER’s wood products comply with the Kyoto Protocol and meet all European Union regulatory requirements, so they can be used in the EU as well as the U.S.

GER made news recently when it began offering carbon offset credits to its customers.  These allow companies that operate in markets that have carbon caps to offset any shortfalls in their carbon emissions.

According to the company’s web site, GER’s products are certified with the UTCS eco-mark.  UTCS is an acronym for Urban Tree Certification System.  A recent Reuters article states that GER developed the UTCS certification and describes it this way:

UTCS (urban tree certification system) is a NYS and internationally recognized urban forest management plan developed by GER CEO Joseph Murray.  UTCS certification system is a socially responsible and environmentally friendly methodology to recycle government approved forestry and non-forest industry generated waste wood.  UTCS includes chain of custody documentation (a tracking system from origin to end user) and 3rd party verifications of sourcing.

So GER certifies its own products, which is quite unusual.  I haven’t been able to find any independent verification of the UTCS certification mark, and the description from the Reuters article quoted above is from the “About Green Energy Resources” text which was probably taken from GER’s marketing materials.

A search of the U.S. Patent & Trademark Office’s trademark database reveals that GER has not filed a trademark or certification mark application for UTCS.  Indeed, UTCS wouldn’t be eligible for federal certification mark registration because a certification mark is used not by its owner, but by others whose products or services are certified by the owner of the mark.

A recent Matter Network story about a New York dry cleaning business caught my attention.  Green Apple Cleaners (Green Apple), which has two locations in Manhattan and a third in Mahwah, New Jersey, uses environmentally-friendly Solvair Cleaning Systems to launder its clients’ clothes. 

The Solvair Cleaning System is owned by Illinois textile cleaning technology company R.R. Street & Co. (RRS) and covered by a family of RRS patents directed to cleaning systems using organic cleaning solvents and a pressurized fluid solvent. 

In the process disclosed by U.S. Patent Nos. 6,355,072, 6,736,859, 6,755,871 and 7,147,670, clothes are cleaned by an organic cleaning solvent in a perforated drum contained within a cleaning vessel, and the used solvent is extracted by rotating the drum at high speed.  The process then departs from conventional cleaning methods by removing residual solvent with a pressurized fluid instead of using an evaporative hot air drying cycle.

This is made possible because the organic cleaning solvent is soluble in the pressurized liquid solvent.  The pressurized fluid solvent is then transferred from the drum, and the vessel is de-pressurized so any remaining pressurized fluid solvent evaporates.  According to the patents, the result is less damage to both the clothes and the environment.

Green Apple also owns a federal registration for the GREEN APPLE CLEANERS mark (greenapplereg.pdf).  Interestingly, Green Apple’s eco-mark sailed through the U.S. Patent & Trademark Office (PTO) in just eight months, avoiding the problems faced by other eco-marks such as GREEN BRANCH .

Presumably, the PTO did not find GREEN APPLE CLEANERS merely descriptive of environmentally-friendly cleaning services because of the presence of the “APPLE” element in the mark.  This offers one lesson for applicants seeking federal registrations for eco-marks containing such eco-descriptive terms as GREEN or CLEAN:  add a non-descriptive, arbitrary word to your mark to spice things up and improve your chances of success in the PTO.

 

A couple of weeks ago, I responded to a first Office Action issued by the U.S. Patent & Trademark Office (PTO) in connection with the trademark application for GREEN PATENT BLOG (see ).  As discussed previously, the trademark examiner rejected the application on the ground that the mark GREEN PATENT BLOG is “merely descriptive” of blogs that provide information on clean tech patents.

Under federal trademark case law a term is merely descriptive if it immediately conveys a significant characteristic of the goods or services for which the mark is being used.  On the other hand, if the consumer has to exercise “mature thought” or follow “a multi-stage reasoning process” to determine the product or service of the mark, then the mark is not merely descriptive. 

My argument in the response (gpbresponse.pdf) hinged on this immediacy requirement and focused primarily on the “green” component of the mark.  Specifically, GPB asserted that the mark does not immediately communicate the subject matter of the services because the term “green” has many meanings in addition to the environmental and clean tech definition, such as relating to plants or as a slang for money or finance.  

Moreover, some of those additional definitions comprise subject matter that, like clean tech, is the stuff of patents.  For example, plant patents are quite prevalent (think Monsanto, genetically-modified crops, etc.).  Financial services patents are common as well.

GPB also argued that determining the services provided under a mark containing “green” together with “patent” requires a reasoning process because most people do not associate “green” characteristics (whether clean tech, money, plants or something else) with intellectual property law.

So advocate turned blogger turned blogger/advocate gave it his best shot.  In another few months, we’ll see how GPB did.

In February, I filed a trademark application (gpbapplication.pdf) in the U.S. Patent & Trademark Office (PTO) for GREEN PATENT BLOG.  I figured I would compromise my credibility in matters of green intellectual property (IP) if I didn’t take available measures to protect my own green IP.

In the application, I avoided the trouble with eco-marks that I discussed in a couple of previous posts (see here and here).  That is, I drafted the listing of services to indicate their green aspect.  My listing is as follows:

ON-LINE JOURNALS, NAMELY, BLOGS FEATURING NEWS, INFORMATION AND LEGAL ANALYSIS RELATING TO INTELLECTUAL PROPERTY LAW ISSUES IN THE CLEAN TECHNOLOGY AND RENEWABLE ENERGY INDUSTRIES

A few weeks ago, the PTO issued a first Office Action (gpboa.pdf) in which the trademark examiner rejected GREEN PATENT BLOG as “merely descriptive” of blogs that provide information on green technology (a trademark can’t be registered with the PTO if it is a generic term or descriptive of goods or services because that would restrict competitors from conveying information about their goods or services). 

Specifically, the examiner noted that BLOG is generic for blogging services, and GREEN PATENT describes the subject matter of the blog.  The Office Action stated that GREEN describes things that involve clean technology or renewable energy, and PATENT is generic for a form of intellectual property.  Finally, the examiner attached some evidence of internet usage of “green patents” that he says shows that the term describes clean technology patents.

I will be formulating a response to the Office Action in the next week or two and will report on it once it’s filed.  But don’t worry – Green Patent Blog will fight the good fight.  I’ll go all the way to the Supreme Court if I have to.

 

The Dechert law firm’s annual report on trends in trademarks (which I accessed through this post on Greenbiz) came out in April, and its top story was the explosion of eco-mark applications received by the U.S. Patent & Trademark Office in 2007. 

Among the report’s findings is that the number of marks including the word GREEN more than doubled from 1,100 in 2006 to 2,400 in 2007.  The phrase GO GREEN appeared in over 100 different proposed marks.  The word CLEAN was used in over 900 applications, and GREEN and CLEAN appeared together in 74 marks.  Over 50 different marks paired CLEAN with either FUEL, ENERGY or POWER. 

The report also noted that marks including the prefix ECO more than doubled to almost 900.  ENVIRONMENT appeared in more than 450 marks, and ENERGY was used in almost 1200 marks.  The report is an interesting read, and the narrative on the ECO-products and services available to consumers is both hilarious and mind-boggling.  (see my previous posts on eco-marks here)