[Guest post] Why IP lawyers are among the best placed to help lead the sustainable revolution

The IPKat has received and is happy to publish a guest post penned by former GuestKat Laetitia Lagarde (Baker McKenzie), addressing the increasingly important topic of sustainability and reflecting on the relationship between this, IP, and ... IP lawyers.

Here's what Laetitia writes:

Why IP lawyers are among the best placed to help lead the sustainable revolution

by Laetitia Lagarde

Here we are halfway through 2020. What an eventful year it's been in unprecedented ways that will be unforgettable for all sorts of reasons — both bad and good. Positive changes are undeniable: agile working is becoming normal for some professions, including ours. As we are going back to some sort of "new normality" around the world, we are now avoiding long travels like unnecessary commutes and we can attend conferences and webinars from the comfort of our own homes, meaning less jetlag and more time for family or catching up on this blog!

But this year is also a time for reflection about how the way we live our lives affects all of us and the planet. In this sense, ‘sustainability’ is a key concept.

The book explains
why it's okay for a cat to be green…

What is sustainability?

Sustainability is associated with "sustainable development," defined as "development that meets the needs of the present without compromising the ability of future generations to meet their own needs" by the Bruntland Commission Report published by the UN in 1987.

According to UNESCO, there are four intertwined dimensions to it: society, environment, culture and economy. While sustainability is the long-term goal, sustainable development refers to the processes to achieve it, e.g., sustainable agriculture, R&D transfer, education and training, etc.

In today's complex and uncertain world brought about by geopolitical challenges, unprecedented economic, social and health crises, and climate threats, several companies are seeking to include sustainability in their activities and adapting their business model so they can become more resilient to face these issues.

Moreover, brands are increasingly expected to behave like upstanding corporate citizens — from solidarity initiatives to taking policies, practices and commitments around corporate social responsibility (CSR), sustainability, and diversity and inclusion.

How IP laws and practitioners can help

It may sometimes feel like the legislator is playing catch-up with the technology commonly used every day (think online platforms to stream on-demand content). However, in this case, IP already offers the existing tools to allow for the protection of innovative solutions serving sustainable development for great causes. As brand owners come to IP experts to help solve issues comprehensive of both IP and sustainable development perspectives, here are some concrete examples of how we can help:

Branding and sustainability: Trademarks serve to identify the origin of products and services and to communicate a message to the public, for example about how it has environmentally friendly characteristics. IP can be used to combat greenwashing if the information or claim conveyed is confusing or misleading. Consumers tend to trust more labels issued from a third-party verified scheme, such as certification trademarks, e.g., Fair Trade, Vegan or Organic. Finally, IP can help establish a brand value and equity for something that is intangible, so that it is seen as "doing something good for the planet," and allow companies to sell that message.

Preservation of biodiversity and resources: The recent events have caused us to reflect on the connection between human conduct and planetary health, and consumers will look at labels even more and look to buy locally. From Geographical Indications (GIs) to Plant Variety Rights (PVRs), IP can help certify the origin of products including the quality of certain raw ingredients, such as "organic" food or "natural" cosmetics; trade secrets can protect the processes used to manufacture certain products.

Authentic products: Brands are under increasing pressure to be more transparent about their supply chains, including with regard to human rights, treatment of workers or how they source raw materials. Blockchain technology is being used to fight counterfeits and parallel imports, and can also help track the products' journey in the supply chain, guarantee authenticity and help address the consumers' demands for more transparency. For example, LVMH worked with Microsoft to develop a blockchain service to protect its goodwill by fighting fakes and gain consumer loyalty by giving them access to the lifecycle of their products.

Circular economy: This sustainability buzzword refers to moving away from the take-make-dispose model that can help fight the global waste problem. The European Commission adopted a Circular Economy Action Plan in March 2020 — one of the main building blocks of the European Green Deal. IP can play an important role in transitioning to this new kind of business model. Any innovation can fall within the realm of IPR protection and help promote R&D — from designing products for a longer duration, patents for renewable energy, and tech transfer, to technologies for recycling, upcycling and all the other economic opportunities of this fourth industrial revolution.

With these few examples, it's obvious how businesses and brands can help change the world toward sustainable development and a new market economy, and IP can help stimulate innovation and competition between innovators. As more and more legislation is being implemented to help achieve the UN Sustainable Development Goals, IPR protection and licensing is predicted to increase in parallel.

The interaction of IP and sustainability in our community

WIPO's annual conference for World Intellectual Property Day, held on April 26, was on "Innovate for a Green Future." WIPO also issued its Green Strategic Plan (2019-2023) to help accelerate the transition to a greener global economy. You can read about the latest trends in the sustainability space with an IP angle:

• WIPO and the Sustainable Development Goals (SDGs)
• Sustainability and the circular economy
• Cultural sustainability and indigenous rights
• Sustainability and fashion
• Trademarks and the promotion of sustainability
• Green innovation and technology transfer

INTA held its first-ever virtual conference "Brands in Society" in June on the important role that sustainability, CSR and technology play in the world today. Sessions varied from "Collaboration Is Key: Public and Private Sectors Working Together on Sustainability Efforts" to a UN keynote speaker on "Investing in Our Future: UN Development Program." Of course, INTA already considered this important topic for brands and consumers in 2017; it held The Brand Authenticity conference (see IPKat reports one, two and three) as consumers were taking more of an interest in the ethical and sustainable credentials of brands and, in turn, companies were waking up to the risks and benefits in this area. The agenda covered a variety of topics like cultural sustainability, green claims, labels and trademarks, or CSR and anti-counterfeiting. MARQUES will have a dedicated session on sustainability and brand value on 21 September during its annual virtual conference month.

INDICAM, the Italian Anti-counterfeiting Association, held a conference on World IP Day with sessions on brand reputation, innovation and awareness, sustainability and IP protection. In a session on the impact on climate change and IP, Fabrice Mattei explained how his CLIPMATE tool can help users (clients and law firms) compare IP strategies based on carbon footprint, and allows them to minimize and eventually offset their carbon emissions.

It is just a matter of time before carbon footprint becomes the new reference for products and services. If you are curious about calculating yours, you can start here.