Trademarks and Private Environmental Governance

David E. Adelman* & Graeme W. Austin**

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.

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© 2017 David E. Adelman & Graeme W. Austin. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the authors, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Harry Reasoner Regents Chair in Law, University of Texas at Austin School of Law.

**Chair of Private Law at Victoria University of Wellington, New Zealand, and a Professor of Law at Melbourne University Law School, Australia. The authors are grateful for the insightful commentary on earlier drafts by Rob Batty, Lionel Bentley, Oren Bracha, Robert Burrell, Irene Calboli, Graeme Dinwoodie, Dev Gangjee, Emily Hudson, Jed Kroncke, Annette Kur, Elizabeth Siew-Kuan Ng, Haochen Sun, David Tan and the participants at seminars and public lectures at the Oxford University Intellectual Property Research Centre, the Cambridge University Centre for Intellectual Property and Information Law, the Sheffield University School of Law, Hong Kong University Law and Technology Centre, and the EW Barker Centre for Law and Business, National University of Singapore.