Academic journal article Notre Dame Law Review

Trademarks and Private Environmental Governance

Academic journal article Notre Dame Law Review

Trademarks and Private Environmental Governance

Article excerpt

This Article examines the relationship between private environmental governance and trademark law. Over the past two decades, green trademarks and other forms of private governance have flourished in tandem with the retreat from national and international public law modalities of environmental regulation. The rising political opposition to environmental regulation partly accounts for this change. Also relevant is the rise of globalization, which due. to jurisdictional and trade constraints has diminished the effective regulatory control countries have over products sold in their markets.

Private environmental governance is premised on consumers "voting with their wallets " by selecting products that reflect not just their instrumental preferences, but also their values. The potential of this form of private governance has not been realized, however, in part because consumers are often overwhelmed by information from multiple green trademarks with different standards or criteria. The resulting congestion of market information has undermined the communicative function of green trademarks that is essential to enabling consumers to make environmentally responsible choices.

For a variety of reasons, trademark law is premised on a narrowly prescribed role for trademarks that is poorly adapted to facilitating information-based forms of private governance. Instead, intramural battles over the scope of trademark rights--ignited by overreaching corporate branding strategies--have elevated a reactionary turn in trademark theory that reduces trademarks solely to identifying the specific source of a product or service. We argue that the normative ends of private environmental governance should factor into, though by no means determine, trademark policy.

INTRODUCTION

Can trademark law empower consumers to select products that reflect not just their instrumental preferences but also their values? The answer might seem obvious. Consumer markets are awash in product certifications that, to name just a few, alert consumers to corporate labor standards, fair trade policies, and environmental practices. (1) In this Article, we focus on "green trademarks"--or "ecolabels"--that convey information about the sustainability of production and manufacturing processes, the environmental impacts of commercial operations, and the safety of materials in end-products. (2) In part as a response to economic globalization, (3) hundreds of ecolabels have been established and reputable programs have emerged over time and succeeded commercially. (4) Third-party environmental certification is now a mainstream form of private governance and, by implication if not always by design, trademarks are essential to its success. (5)

This Article examines the legal boundary issues impacting information-based forms of private governance that incorporate elements of intellectual property and environmental law.'' The principal source of tension we identify is the divergent motivations that animate the two legal domains. Environmental governance in the form of product certification fills information gaps related to public goods and common pool resources. (7) Most certification programs are established by private entities, both nonprofit and commercial, to provide information that enables consumers to select products that reflect their environmental values; in doing so, they create market incentives for businesses to meet heightened standards by facilitating product differentiation and premium pricing. (8) Trademarks, by contrast, safeguard market competition by preventing free riding and reducing consumer search costs. (9) The narrow focus reflected in these ends has been reinforced by widespread concerns about corporate branding strategies that threaten markets and free speech. (10) This experience has fostered an orthodoxy among academics and other commentators that strictly limits trademarks to "signaling" the origin of a product or service; (11) all other communicative functions are considered suspect--including those that facilitate product differentiation. …

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