In an open letter, the International Consumer Protection and Enforcement Network (ICPEN) has called on fashion retailers to clean up their environmental marketing. The letter urges brands to stop making vague or exaggerated sustainability claims that could mislead consumers and violate consumer protection (and advertising) laws. It highlights specific marketing practices—such as the use of terms like “sustainable,” reliance on generic data, or misleading imagery—that fail to meet legal substantiation requirements.
Fashion, responsible for around 8% of global greenhouse gas emissions and 20% of wastewater, is under mounting scrutiny for greenwashing. The ICPEN letter emphasizes the need for meaningful, verifiable claims that reflect real environmental impact.
Key points from the letter include …
> Vague claims: “Refrain from using vague and general claims such as ‘eco-friendly,’ ‘green’ or ‘sustainable.’”
> Substantiation: “Only make environmental claims when [you] already have sufficient evidence to substantiate the claim.”
> Misleading visuals: “Refrain from using implicit green claims such as images of rainforests, leaf symbols, green backgrounds … that do not give a truthful and accurate representation.”
> Sustainability filters in online shops: “Using filters like ‘sustainable product range’ can mislead consumers… Products included should meet the criteria clearly.”
> Data use: “Refrain from using product-specific claims that are based on evidence that is not specific to the product, for example global average numbers.”
> Future goals and promises: “Focus on the specific measures already taken or currently being undertaken… rather than unsubstantiated claims about future aspirations.”
> Labelling: “Avoid using a trader’s own labelling schemes if they are not widely known and recognized.”
New Balance’s Brand President & Chief Marketing Officer Chris Davis posted something interesting on LinkedIn this week, stating that “the concept of a brand ‘owning a color’” (or more accurately, maintaining trademark rights in a specific shade or shades for use on specific classes of goods/services) “is not a universal phenomenon: Hermés owns orange, Cartier maroon, and Tiffany invented a blue. It takes enduring consistency, dedication, unapologetic confidence and celebration.” New Balance’s equivalent, according to Davis: it’s grey, “a timeless color synonymous with our brand.”
The company first adopted its grey hue for its performance running shoes in the late 1970s, when the trend at the time was bright colors and white meshes. “Designed to withhold the elements of metropolitan running, grey suede was applied in all running designs to reinforce durability, to blend with the color of concrete asphalt, and to capitalize on this emerging trend with a practical solution,” Davis states. And thus, “the everlasting connection between NB and grey was born.”
There are a few bits there, namely, those that seem to suggest there is some functional aspect to NB’s use of grey, that might raise eyebrows. And it is worth noting that New Balance does not appear (based on my very cursory USPTO search) to maintain registrations for trade dress that specifically claims the color grey. One thing that I did find: A pending application for registration for “THE GREY GUIDE” for use on footwear and apparel.
That is not to say that the company lacks rights in its grey of choice – in a word mark capacity, at least. In fact, the company makes widespread and potentially source-indicating use of the “GREY” name across various company channels – from the “Grey Shop Collection” on its e-commerce site to its annual “Grey Days” event, which takes the form of a “multi-week celebration of Grey in May spotlighting the new and classic expressions of the brand’s enduring legacy in its signature color.”
As for claims that it has made that specifically cite its use of grey, in its infringement case against Golden Goose, NB alleged that it has developed protectable rights in the 990 sneaker trade dress, including “at least the following combination of elements: ‘(i) Upper composed primarily of multiple tones of a single color (usually grey, blue, or black); (ii) Upper including mesh underlay with suede overlay creating mesh windows in forefoot and midfoot; (iii) Overlay bars in lateral and medial forefoot regions; (iv) Midsole having forefoot-to-midfoot portion of a first color (usually white) and different colored (usually grey) midfoot-to-heel portion… .’” – Emphasis courtesy of me.
> ICYMI: There was a stipulation of dismissal in the case on April 5.
In other color mark news, the Federal Circuit upheld a refusal to register Medisafe’s dark green glove color as a trademark this week. In In re PT Medisafe Technologies, the Federal Circuit affirmed the USPTO’s refusal to register a trademark for the color dark green (Pantone 3285 C) applied to chloroprene medical gloves. The court upheld the Trademark Trial and Appeal Board (“TTAB”)’s determination that the proposed color mark is generic – or so commonly used in the medical glove industry that it cannot serve as an indicator of source.
Medisafe, a glove manufacturer, had argued that the green hue distinguished its product. However, both the TTAB and the court concluded that consumers do not associate that particular color with a single source. The decision adopted the TTAB’s “Milwaukee test,” a tailored two-step inquiry for color marks, and found substantial evidence that the green color was widely used across the industry.
A few key takeaways from Fed. Circuit’s decision …
> Legal Standard Affirmed: The Federal Circuit formally adopted the TTAB’s modified H. Marvin Ginn test (from Milwaukee Electric Tool) for evaluating the genericness of color marks.
> Color Marks Can Be Generic: The court confirmed that trade dress, including color, can be deemed generic under the Lanham Act, rejecting Medisafe’s argument that only “names” can be generic.
> Evidence Supported Generic Use: Screenshots of third-party sellers, minimal and nearly identical customer declarations, and a flawed Medisafe-sponsored survey supported the Board’s finding that the mark was not source-identifying.
> Acquired Distinctiveness Rejected: While the Board and the court both evaluated acquired distinctiveness as an alternative argument, the court clarified – citing Real Foods Pty Ltd. v. Frito-Lay N.A. – that a finding of genericness renders a mark categorically ineligible for trademark protection, regardless of any claim to distinctiveness. The issue was not treated as moot but was directly considered and dismissed on legal grounds.
This decision reinforces the high bar for registering color as a trademark and signals the need for applicants to provide strong, market-wide evidence of distinctiveness – in standardized industries like medical supplies, as well as in markets like fashion, accessories, and footwear where color often serves both functional and aesthetic purposes.
The U.S. Trade Representative released its annual Special 301 Report on April 29, delving into the adequacy and effectiveness of U.S. trading partners’ protection and enforcement of intellectual property (IP) rights. The annual report, which details the USTR’s findings of more than 100 trading partners “after significant research and enhanced engagement with stakeholders,” has major implications for fashion and retail brands flags significant risks in markets central to global apparel and luxury supply chains.
One significant aspect of the report: Mexico was escalated from the Watch List to the Priority Watch List “due to long-standing and significant IP concerns that have not been resolved, many of which relate to Mexico’s implementation of the United States-Mexico-Canada Agreement (USMCA). These include concerns regarding enforcement against trademark counterfeiting and copyright piracy, protection of pharmaceutical-related IP, pre-established damages for copyright infringement and trademark counterfeiting, and plant variety protection.”
China in a nutshell: China remains a critical concern for brands, according to the USTR, which highlighted an array of IP-related issues, including:
> Online Counterfeiting & Piracy: Despite some enforcement actions, China remains the primary source of counterfeit goods sold globally, including luxury fashion, footwear, and accessories. E-commerce platforms and social commerce channels originating in China continue to be major conduits for counterfeit sales.
> Weak Implementation of Commitments: China has failed to fully implement key IP obligations under the U.S.-China Phase One Economic and Trade Agreement, including commitments on trade secrets, counterfeit goods in transit, and enforcement against online piracy.
> Bad Faith Trademark Filings: The report emphasizes China’s persistent problem of individuals registering foreign brand names in bad faith.
> Forced Technology Transfers: While not specific to fashion, the report notes that China still uses regulatory approvals and market access as leverage to pressure foreign firms to disclose proprietary information.
Indonesia is cited for increasing local manufacturing of counterfeit goods and a shift in sales to online platforms, with continued weak border and criminal enforcement – a concern for fashion and retail sectors that rely on IP integrity. Brazil continues to allow widespread import and sale of counterfeit fashion products and has not modernized copyright protections for digital content, a growing concern in the age of e-commerce and online brand building.
The report underscores the urgent need for fashion and retail companies to monitor IP enforcement environments, register their trademarks early and aggressively, and work with U.S. trade officials to push for stronger enforcement and border protections in high-risk markets.