Green Ambition

Newer, smaller, and specialized firms that invest in low-carbon technologies face substantial barriers to scaling up their operations, finding it more difficult to finance their activities than other firms, noted the report. They were also less likely to be acquired by larger firms.

A Demand for Change

But despite these challenges, consumers are demanding this sea change in the fashion industry, according to 2020 findings by McKinsey & Company (US), Survey: Consumer sentiment on sustainability in fashion.

The survey revealed that of 2,000 German and UK consumers aged 18 to 75, 67 percent considered the use of sustainable materials to be an important purchasing factor, while 63 percent viewed a brand’s promotion of sustainability in the same way.

Commenting on these findings, Liz Lenjo, founder and managing consultant of MYIP Legal Studio (Kenya), a legal consultancy, noted: “Trends show that buyers and consumers want to know the origin of their fashion and accessory items, the stories behind these companies, and the people behind them.”

“Ethical fashion is now on the rise. Consumers are aware of the need to protect the environment, and those with spending power are slowly shifting their spending habits toward ethical fashion brands,” she said.

In addition, explained fashion trademark lawyer Ashlee Froese, founder of Froese Law (Canada), “When you talk about fashion, the biggest target demographic is people in their teens, 20s, and 30s, so brands have to look at the motivating purchasing decisions [of these groups]. These generations have grown up differently than other generations, and social consciousness is a big motivating factor for them.”

As noted in INTA’s 2021 report, Brand Restrictions Study: A View from Gen Zers and Millennials, almost 5 in 10 respondents globally say that the brands they use reflect their personal values.

Brands that wish to retain an enduring appeal to a sizable demographic need to listen to this unprecedented call for change, Ms. Froese said, noting: “This demand for greater corporate social responsibility has become more prevalent, and the ability of consumers to consolidate through the viral nest of social media has created a pressure point that I don’t think we have seen before in consumer culture.”

The good news is that many large brands are now striving to be more environmentally friendly. Capri Holdings Limited (US), LVMH (France), Ralph Lauren Corporation (US), and The Kering Group (France), for example, are among the 2,000 companies and financial institutions globally that have all committed to working with the Science Based Targets initiative to set science-based emissions reduction targets consistent with the latest climate science. The initiative is a partnership among CDP (formerly the Carbon Disclosure Project), the World Resources Institute, the World Wide Fund for Nature, and the United National Global Compact.

Marking an emerging trend, the fashion rental market is booming, according to the report, Online Clothing Rental Market: Global Industry Trends, Share, Size, Growth, Opportunity and Forecast 2020-2025 by market research company, the IMARC group (India). The study noted that the global online clothing rental market reached a value of US $1.26 billion in 2019 and is expected to soar to US $2.08 billion by 2025.

Among the players, Burberry (UK) unveiled rental and resale options in December 2021 through a partnership with luxury rental company My Wardrobe HQ (US). As part of its Project Earth sustainability initiative launched last year, Selfridges (UK), a high-end department store, rents clothing and accessories from luxury brands such as Balenciaga (France), Jacquemus (France), and Yves St Laurent (France).

“Quite a lot of brands are now adding rental and resale elements,” according to Rosie Burbidge, partner, Gunnercooke (UK). “I think the luxury companies in particular are starting to clock that, that they’ve got the opportunity to authenticate and then manage the resale process. And that gives them quite a big competitive advantage. So, I think that will be the major trend that we see continuing.”

In the arena of fast fashion, Zara SA (Spain) and Hennes & Mauritz AB (Sweden) have introduced sustainable clothing collections, and the latter also offers a recycling initiative.

But is it enough? And what role can intellectual property (IP) and brand practitioners play in these brand revolutions? Climate-friendly fashion brands need to meet specific criteria, noted Sujata Chaudhri, founder of Chaudhri IP (India), which represents brands such as American Eagle (US), Levi’s (US), and New Balance (US).

Genuine green fashion should not have a big carbon footprint and it needs to produce carbon emissions below a benchmark of 1.5 degrees, according to the United Nations Climate Change’s “Fashion Industry Charter for Climate Action.”

“This ethos encompasses brands that offer items comprising sustainable and organic raw materials, second-hand clothing, or clothes and footwear made out of recycled materials, and the guarantee of fair labor practices and environmentally-friendly production processes,” explained Ms. Chaudhri.

“If a fashion company wants to grow, it will have no choice but to embrace many changes that would address climate change. It’s a slow and difficult process. But I think it’s about time that companies start doing it.”

While Safia Minney, founder of pioneering fair trade clothing label People Tree Ltd. (UK), welcomes this wake-up call to brands, she warns against brands merely paying lip service to sustainability goals.

To help achieve a more environmentally friendly industry, she founded Fashion Declares, a grassroots movement of individuals across the sector aimed at speaking out to tackle the climate, ecological, and social crisis. “Many brands seem to have their little ‘conscious collection,’ but it’s too little, too late,” said Ms. Minney, who serves as executive director of Fashion Declares.

Rather, she continued, “We urgently need to cut carbon emissions, not by 50 percent by 2030, but to net zero by then. The quantity of fashion produced has increased profoundly since 2000; we need to decrease production by 75 percent or more.”

The key challenge is propelling the fashion sector away from the synthetic fibers and fabrics which make up two-thirds of materials used in production processes worldwide and steering it more toward renewable energy sources, according to Ms. Minney.

And, she cautioned, “If we don’t, the fashion sector could be producing 25 percent of global carbon emissions by 2050. We can’t let that happen.”

COVID-19 and Supply Chains

Undoubtedly the COVID-19 pandemic presented huge challenges for the fashion sector, leading to disrupted supply chains. Noted Ms. Chaudhri: “For some eco-fashion companies, local sourcing has worked, whereas for others, restrictions on movement of raw materials and limitations on availability of labor have caused massive supply chain issues leading to increased costs.”

In the wake of this unprecedented crisis, the Sustainable Apparel Coalition published a report, Weaving a Better Future: Rebuilding a More Sustainable Fashion Industry After COVID-19. According to the report, while the crisis strained fashion firms’ commitment to sustainability, it has also triggered demands that companies accelerate their progress on sustainable initiatives in order to be competitive in the post-pandemic market.

In Ms. Lenjo’s view, the pandemic has galvanized the eco-fashion sector in Kenya.

“Brands that outsourced and exported products in the pre-pandemic era began to experiment with what was locally or easily available, and we also saw more upcycled products where recycled fashion fabric and old garments were made anew,” she said.

Brand Ethos

So how can a fashion company legitimately define itself as “green”? How can brand guardians support its journey and ensure it evades any pitfalls along the way?

For Ms. Minney, the critical factor for any authentic, self-styled green brand is transparency and a “willingness to take responsibility for a multi-stakeholder approach—giving voice to suppliers as well as company owners. A close partnership with suppliers is one characteristic of the new thinking in progressive fashion businesses.”

“Companies need to undergo a cultural shift toward good governance, transparency, and better buying practices—because you can’t expect a factory to deliver human rights and to protect the environment with better production processes if you want the same prices as a year ago,” she added.

For authentic green brands, the correct application of IP protection is critical. For one, Ms. Lenjo said, “It saves the brand any public embarrassment based on misrepresentations made from a consumer protection or competition law point of view, which could cost them more than just money in legal fees.”

When Ms. Dai first began developing her startup, she sought the advice of Ms. Burbidge, who is also author of European Fashion Law: A Practical Guide from Start-up to Global Success.

This move was crucial in gaining a deeper insight into the value of branding and trademarks. The entrepreneur noted that at first she only registered a trademark for the brand logo, “because I didn’t know any better. After three years, I realized that to attract investment I needed to obtain trademarks for more of our products so we sought legal advice.”

Ms. Dai added: “Getting a friendly lawyer to review our IP was really important to us and ensured that our logos, brands, and company ethos were clearly promoted and were legally sound.”

This sentiment is echoed by Pedro Roisman, founder and co-CEO of Martha (Argentina), an accessories company whose business model centers around sustainability, and which specializes in headwear made from recycled materials.

Its commitment reaped rewards in July 2020 when Martha was invited to collaborate with eco-fashion trailblazer Patagonia. The outdoor clothing and gear retailer proposed co-creating new products from fishing waders that had already completed their life cycle.

“We received 250 waders, each with its own story—some had sand in their pockets, others had resin that came from users’ attempts to fix the product, plus dirt and wear and tear from use,” Mr. Roisman recalled.

IP guidance played a critical role in the company’s success. He credits the insights and guidance from IP law firm Ojam Bullrich Flanzbaum (Argentina) as invaluable as the brand carved out a distinctive niche.

Noted Mr. Roisman: “For our business, this advice was fundamental. Fashion brands need to build trust, and the only way to create and retain that trust is with IP. It is central, and every time we launch in each new country, we seek this legal guidance.”

Greenwashing Perils

Trademark counsel can also help brands dodge misleading marks. In this vein, a huge issue facing fashion startups—and consumers—is greenwashing: the process of conveying a false impression or providing misleading information about how a company’s products are more environmentally sound.

As Ms. Burbidge, DaiWear’s counsel, explained: “I think the biggest problem facing startups is overstating what it is they are doing if they describe themselves as ‘sustainable.’ They need to be careful that what they are doing across the business is ethical or eco-friendly if they are describing it as such.”

Ms. Chaudhri echoed these concerns, noting: “Many of these so-called eco-companies use words that are inadvertently misleading. They don’t accurately portray what their products are.”

Efforts to avoid using misleading marks involve applying many of the traditional trademark principles, including encouraging brand owners to choose their marks carefully, to avoid descriptive marks, and to use truthful terms that protect both brands and consumer interests.

For example, Ms. Chaudhri said, “You see the term ‘organic clothing’ all the time, but such claims need to be validated.” According to Raquel Flanzbaum, partner at Ojam Bullrick Flanzbaum (Argentina), the issues posed by greenwashing in fashion have increasingly drawn the attention of IP specialists in Argentina.

“As IP lawyers, we must advise our clients who own trademarks not only when they are seeking the registrations, but also when they are actively using them in the marketplace, in order to avoid problems, especially those caused by advertising hyperbole,” she opined.

A Vital Role

“Ecolabelling” is another way brands in the green fashion space can vouch for their products’ ethical credentials, as they help consumers identify products or services proven environmentally preferable within a specific product or service category.

Such labels include the B Corporation certification, awarded to companies that achieve higher standards of social and environmental performance, transparency, and accountability.

Both DaiWear and Martha are examples of fashion brands that have attained this status.

For Mr. Roisman, it “was a great moment of pride,” he said.

Again, IP lawyers can play a key role in this process, Ms. Froese said.

“Lawyers are well placed to protect brands and help them advertise their social responsibility in their branding,” she said, noting they can help companies identify if they comply with the criteria for specific certifications.

The past two decades have seen a spate of so-called “green trademark” applications in the EU, according to a September 2021 study by the European Union Intellectual Property Office (EUIPO). The report, Green EU trade marks: Analysis of goods and services specifications,1996-2020, revealed that in 2020 alone, nearly 16,000 green EU trademark applications were filed.

But while green innovation is welcome, brands need to tread carefully.

Noted Ms. Chaudhri: “There have been cases of brand owners filing applications for marks such as ‘eco,’ ‘recycled,’ ‘green,’ and ‘sustainable schoolwear.’ Trademark offices including the U.S. Patent and Trademark Office and the EUIPO have rightly refused applications, because these terms must be available for use by everybody; no single party can claim a monopoly.”

A Turning Point

Despite the sector’s progress, another roadblock is that fashion remains one of the world’s least-regulated industries. But the time has come when fashion—and its brand counsel—may have to adapt not only to changing consumer tastes but also to legislative shifts.

In the United States, the New York State Legislature is looking at this issue. In January 2022, New York State Senator Alessandra Biaggi introduced the Fashion Sustainability and Social Accountability Act (Fashion Act), which, if passed, would reportedly make New York the first U.S. state to hold fashion companies accountable for their role in climate change and other human rights impacts.

The Fashion Act would require brands selling in New York that have global revenues exceeding US $100 million to map their supply chains and disclose the environmental and social impacts of each step, including materials, sourcing, and shipping.

According to Ms. Froese, the proposed legislation, will hold big fashion brands accountable for their role in climate change.

“Given that New York is one of the global hubs of the fashion industry,” she said, “this is a telling sign that sustainability is going to become indoctrinated into the DNA of the fashion industry.”