Every April 26, the World Intellectual Property Organization celebrates World IP Day. This year’s theme is “Innovation for a Green Future”, which celebrates how intellectual property (IP) law can support green innovation.

Today, with easy access to delivery services, environmentally friendly packaging is an important consideration for many companies and purchasers. There are several aspects of packaging to think about when trying to decrease its environmental impact, including the packaging itself, the emissions required to ship it, and the energy and raw materials that go into its manufacture.

The Packaging Itself

Packaging may be biodegradable, compostable, recyclable, or none of the above. Containers and packaging account for 80.1 million tons of waste in the US (up from 27 million tons in 1960), which is about 30% of all total solid waste in the country. Now, we’re starting to see new solutions to divert waste from landfills; many of these solutions are 100% biodegradable. For example, mushroom packaging is made completely of mushrooms and can be molded for various products.

The Emissions Used in Shipping

While the downside of plastic is highly publicized, one advantage of plastic packaging is its lightweight quality. Plastic is one of the lightest packaging materials, lighter than its heavier glass and paper alternatives. That means it requires fewer emissions to ship and produces fewer emissions when it is eventually destroyed.

Packaging weight is particularly important in specific industries, like the wine industry. Upwards of 90% of American wine is produced on the West Coast, and then shipped to the East Coast where a majority of wine consumers live. Half the weight of an ordinary case of wine comes from the bottles. In contrast, in a case of boxed wine, only 5% of the weight comes from the boxes. So, if wine manufacturers shift from bottled to boxed wine, some projections estimate that the resulting reduction in greenhouse gas emissions would be the equivalent of removing 400,000 cars from the roads.

The Energy and Materials Required to Manufacture Packaging

To make environmentally friendly packaging, a company has to take into account the quantity of raw materials, and the electricity, fuel, and water that go into manufacturing the packaging. Some companies have taken huge steps towards reducing their packaging’s impact. For example, Puma’s Clever Little Bag has replaced its shoeboxes, and uses 60% less energy and water to produce. It saves 8, 500 tons of paper, 20 million megajoules of electricity, 1 million litres of water and 10,000 tons of carbon emissions per year.

Ways to Protect IP Rights in Environmentally Friendly Packaging

Puma’s Clever Little Bag also required the design team to brainstorm around 2,000 ideas over the course of nearly two years before arriving at the final design. In order to protect companies’ investments in their products and incentivize companies to innovate for a green future, IP law can step in and protect packaging in various ways.

Trademarks

With the recent amendments to the Trademarks Act (the Act), distinguishing guises are no longer protected as a discrete category of trademarks. However, the new definition of a trademark under section 2 of the Act still covers modes of packaging. Of course, a company cannot protect its mode of packaging if its function is primarily utilitarian (s.12(2) of the Act) if having a monopoly over that mode of packaging will limit the development of an art or industry (s.18.1 of the Act).

Companies can also trademark different aspects of their packaging, such as a specific texture or the colour of the packaging. As always, the name of the business can be protected by trademark law to allow the business to grow, and potentially license its trademark once protection is obtained to ensure the widespread use of its eco-friendly packaging and products.

Copyright

Copyright law can protect specific artwork that appears on packaging, as well as thought-provoking artistic works that comment on our use of packaging. For example, there have been a few interactive art pieces that provide viewers with a visceral understanding of how much plastic consumers use each day. Some examples are this waste labyrinth and this plastic island. Allowing artists to protect and even profit off these kinds of artistic statements allows the vision of a green future to proliferate around the world and encourages innovation in a direction away from wasteful packaging.

Industrial design

A company may also want to register its packaging as an industrial design. For example, the GE energy efficient lightbulb is packaged in a unique zig zag cardboard case that reduces the amount of packaging and processed materials needed to protect the bulb. The three-dimensional shape and configuration of this package may be eligible for registration as an industrial design, though it has yet to be registered. The Canadian Industrial Designs Database has over a thousand registrations under the search term “package,” so there is clearly ample opportunity to protect innovative, sustainable packaging designs.

Patents

Packages may not only be creatively designed, but its materials may be uniquely manufactured as well. For example, a company called Notpla has a patent application that is currently pending for packaging solutions made from seaweed. Patents can protect novel packaging technologies or processes for manufacturing packaging that require less energy than standard processes. While there is some concern that patents prevent the proliferation of green innovation due to their monopolizing function, the time-limited protection allows inventors to gain back their initial investment and incentivizes others to invest in their own packaging technologies and manufacturing processes.

Hopefully, we will continue to see new ideas from companies and individuals who see a benefit in reducing the environmental impact of the packaging materials themselves, as well as the emissions and energy that go into manufacturing and shipping packaging. There are many ways IP law can support green innovation in this area and help to make a major impact on our future.

Written by Rachel Marcus, a second year JD Candidate at Osgoode Hall Law School. She is a guest contributor with the IPilogue.