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Abstract

Green products are red hot, but defining what “green” means is difficult. Consumers are faced with an array of labels denoting products as “green,” making it difficult to determine which are truly “green” and which are “green-washed.” The Trademark Trial and Appeal Board recently determined that the term “green” is generic, meaning anything “environmentally friendly.” The FTC has been criticized for causing consumer confusion over its failure to enforce its “Green Guides” governing environmental product claims and certifications. These “Green Guides,” which do not define “green,” were first promulgated by the FTC in 1992, but have not been updated since 1998. In the face of this criticism, the FTC has sought comment with the aim of amending the “Green Guides” to adapt to the fast growing “green” marketplace. While the FTC has exercised a leading role in addressing environmental product claims, intellectual property enforcement and environmental policy must be coordinated. The Intellectual Property Enforcement Coordinator must facilitate this coordination of “green” IP enforcement by consulting non-traditional IP entities such as the EPA and members of the private “green” industry to develop a consensus about what it means to be “green.”

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