Trademarks & Private Environmental Governance

Abstract

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.