Greenwashing – Situation in Argentina
By Raquel Flanzbaum.
Greenwashing, the practice of appearing to be environmentally friendly when in fact the enterprise making the claim is polluting it, has increasingly drawn the attention of IP specialists in Argentina.
This behavior has not only affected the fashion industry but other fields as well, as we shall see below. We will comment on the various legal provisions applicable here.
To begin with, Art. 42 of the National Constitution states that consumers have the right “to adequate and truthful information”. The Civil and Commercial Code states that the supplier must provide the consumer with truthful and detailed information regarding the essential features of the goods and services which are being provided (section 1100), forbids deceptive advertising, whether comparative or not (section 1101), and grants consumers the right to enjoin deceptive advertising (section 1102). The Consumer Protection Law No. 24,240 includes a similar provision (in section 4, from where section 1100 of the Civil and Commercial Code was directly taken).
Emergency Decree No. 274/2019 on Unfair Competition, issued on April 17, 2019, defines unfair competition as “deceptive acts about the nature, mode of manufacture… main features… and conditions of goods or services” (section 10) and forbids “… any kind of presentation, advertising or propaganda that by means of inaccuracies or concealments may lead to error, deception or confusion concerning the features or properties, nature, origin, quality, purity, mixture, quantity, use, price, marketing conditions or production techniques of movable or immovable goods or services” (section 11). Furthermore, Section 1 of Antitrust Law No. 27,442, enacted on May 9, 2018, forbids “… agreements between competitors, economic concentrations, acts or conducts related to the production and exchange of goods or services whose object is to limit, restrict, falsify or distort competition or access to the markets…”. In turn, section 159 of the Penal Code stipulates that it may constitute a criminal offence when deceptive advertising is part of machinations or schemes to divert, for the benefit of the advertiser, the clients of another enterprise.
There are other provisions, both statutory or regulatory, dealing with specific products or activities. Law No. 25,127 on Ecologic, Biologic or Organic Production, issued 13 September 1999, provides that to qualify as such the raw materials, intermediate products, finished products and by-products must be the result of a system employing the practices indicated the regulatory provisions implementing said law. According to Section 10 of Regulatory Decree No. 206/2001, issued February 2, 2001, the terms biological, ecological or organic, eco or bio may not constitute trademarks or form part of a trademark applied to agricultural products, such as food, fiber, wood, furniture or paper; however, granted registrations issued before enactment of law No. 25,127 are excluded from this restriction.
In the same vein, section 13 of Law No. 26,687 on the advertisement, promotion and consumption of products made with tobacco (enacted June 13, 2011) bars the use of expressions such as “light”, “mild”, “milds”, “low in nicotine and tar content” or similar terms, “as well as descriptive elements, trademarks, figurative signs or phrases, which have the direct or indirect effect of creating the false, misleading or deceptive impression that a given product made from tobacco is less harmful than another or that may mislead as to its characteristics, health effects, risks or emissions”. Consistent with this provision, on August 26, 2014 the National Institute of Industrial Property (INPI, after its acronym in Spanish) issued Regulation No. 191/2014 which in section 2 states that “trademarks with the words light, soft, milds or low nicotine and tar content shall not be registrable for products made from tobacco”.
NIC Argentina, the regulatory authority for the registration of domain names in Argentina, “may refuse applications or revoke domain name registrations, without prior notice, when it deems them offensive, discriminatory, contrary to law, or lending themselves to confusion, deception and/or identity theft, or having been registered in bad faith” (section 19 of the Regulation of the Administration of Internet Domains in Argentina, as amended by Regulation No 2/2022 of January 5, 2022).
Regarding specifically IP, Section 3, paragraph d), of the Argentine Trademark Law, No. 22,362, bars the registration of deceptive trademarks, namely those which may lead “to error regarding the nature, properties, merits, quality, production techniques, function, origin, price or other characteristics of the goods or services involved”. Article 10 bis of the Paris Convention is also applicable here.
However, as this condition is very difficult to ascertain during the prosecution of a trademark application, such objections from the Argentine PTO are rare.
In sum, there are several rules to protect consumers from the dangers of greenwashing and we, as IP lawyers, advise our clients on the meaning of this practice and the risk that it may pose to the commercialization of goods and services.
For further information please contact: rflanzbaum@ojambf.com.
