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Posted in Trademarks

–Sharon Armstrong, Attorney

The Merriam-Webster On-Line Dictionary tells me that “green”—that word that kindly describes that most vilified of veggies and represents the very being of a beloved characterhas been a verb since before the 12th Century. I will take their expert word for it, in spite of the fact that it is only in the past few years or so that I have noticed that this word, so commonly used as a noun and adjective, has come into common use as a verb, as evidenced here, here and here.

Common sense would say that the meaning of “green” as a verb has changed over time—whatever it meant then, I’d wager that most consumers now recognize the infinitive “to green” to mean something along the lines of “to make ecologically/energy/environmentally more safe/sound/smart/sensible than it was before.” This is all well and good if you want the majority of consumers to know what your “green” brand means. But what if you want to protect your “green” brand?

The Trademark Office requires owners of marks incorporating merely descriptive terms—those that describe an ingredient, quality, characteristic, function, feature, purpose or use of the specified goods or services – to disclaim those portions of the mark. Disclaimers narrow the exclusive rights that a registrant may claim in its mark. While the (re-)morphing of “green” from a noun and adjective to a verb does not necessarily support a claim that all marks using green to indicate some environmentally friendly connection are non source-identifying, it does indicate that the meaning of the word “green” among consumers is changing, and quite rapidly at that. At present, there are over 8,000 live marks on the Trademark Office database that incorporate the term “green”; of these, over 1,400 have disclaimed “green.” While a good portion of these disclaimers no doubt cover marks that mean “green” in the color sense, my random clicking on more than a few marks indicates that the word “green” is increasingly recognized by the Trademark Office as a descriptive term for “environmentally friendly” goods and services.

The moral of the story? Hurry up and get your “green” marks registered before consumers associate the color with Earth Day and energy as quickly as they associate it with, well, the color.