Building a greener future with IP strategy
02 May 2022
As we approach the end of spring in the northern hemisphere, the scorching heat of early summer reminds us that climate change is a genuine threat to our future. However, solving the climate crisis is no easy task, and thus it is essential to turn to innovative technologies to work a way out for a sustainable future. Since IP is closely interrelated to technological inventions, can it serve as a driving force for green innovations?
Fabian Klein, counsel at Ashurst in Frankfurt, believes IP rights are significant to green technologies by providing inventors with an incentive, although they may obstruct the technologies from being widespread freely.
“Usually when you think about green IP, you think about how green technologies can be best shared, and implemented all around the world, so that it has the most impacts,” he said. “But once you have an IP right, it really functions the other way around. It enables you to prohibit other people from using the technology.”
However, he opposes the idea that green technologies should not be patented in order to be freely distributable, because it will take away the incentive to come up with a new technology. “If you have to invest in it and everybody else can use it, why should you do it? Why not wait for somebody else to do it? And then nothing happens in the end.”
Klein thinks that the role IP plays in green technology is the same as it has played in the past with other technologies. “It gives you an incentive to really start and work on something, and when you make an invention, you get an exclusivity right which helps you to amortize the costs that you had in inventing it.” Nonetheless, Klein suggested that there is some difference in the mindset of inventors of green technologies compared to other inventors. Conventional inventors usually want to keep the invention to themselves, because it can give them a competitive advantage, such as making production faster, cheaper, and better. But for inventors of green technologies, while they still want to make a good profit from the technologies, they are often more open to sharing them on better terms, such as by licensing them out, because to some extent their aim of inventing the technologies is for the good of humanity.
While patents offer obvious protection for green innovations, Klein suggested that green products can also be helped by another IP system: trademarks. “Trademarks will not make a product green, but they can communicate that a product is green,” he said. As consumers nowadays are getting more concerned about the environment, producers are incentivized to make their products greener and communicate it to consumers via trademarks, so that they can stand out from their competitors and win the environmentally concerned consumers over. For example, they can use trademarks to communicate that their products are made of recycled or organic materials, or made in other eco-friendly ways.
Yet, Klein pointed out that it is important that this sort of market communication must be transparent, honest, and not misleading, otherwise the products might be just greenwashed, meaning they convey a false impression of being environmentally sound when they actually are not. “In this respect, the IP ecosystem needs to set up a framework that sanctions greenwashing,” he said. “In most countries, this is done by unfair competition law. I think that’s really the most adequate way because the courts can adjust it more swiftly and react more to what’s on the market.” He also highlighted it is essential for trademark authorities to be aware that some descriptive terms of green technologies, such as “green”, “re-”, or “eco-friendly”, should be free and not monopolized.
Furthermore, Klein suggested the use of certification marks, like the Blue Angel in Germany, to indicate if a product is environmentally friendly. “This is the way that reliable institutions, such as states, consumer associations, or similar industry parties can use the trademark system to say to consumers: 'we provide our manufacturers with an IP right that they can use if they are environmentally friendly, which distinguishes themselves from those that are not.’ That’s where IP rights can play a bigger role compared to the really technology sector.”