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LEGAL REPORT: INTELLECTUAL PROPERTY fact that its plasmas are lead and mercury free and free to note that most LCDs con- tain mercury. However, it recommended Panasonic stop claiming its plasma TVs are "environmentally friendly." Under the new Canadian guidelines, claiming a product or service is "envi- ronmentally friendly" is not allowed un- less the life cycle of the product or service is thoroughly examined and verifi ed. For example, labelling a consumer product as 'environmentally friendly' or 'envi- ronmentally safe' implies that a product is environmentally benign or benefi cial. Without greater specifi city with respect to the reduced environmental impact, the environmental feature, or the benefi t that the claim refers to, such far-reaching claims could be misleading or deceptive, as every product made is consumable and has an impact on the environment, say the guidelines. James E. Longwell, a lawyer and pat- ent and trademark agent with Gowlings, says this kind of claim is prevalent with advertising for some hybrid automobiles. "On the short window of their lifespan, their use may be more friendly to the environment than normal gas-powered vehicles, but if you look at the produc- tion issues, making batteries, disposal issues for all of those parts, the life cycle of the batteries, it's extremely diffi cult for the consumer to make an informed decision when at the point of purchase they're being told it's a green product," he says. "You don't get the full environ- mental picture." McKenzie says greenwashing was al- ways something "lurking in the back- ground, but to fi nally get the Competi- tion Bureau on record as saying, 'This is what we'll apply in determining whether a claim is potentially misleading,' I think that's very helpful," she says, although she notes some of the comments in the guidelines are a little unwieldy. For ex- ample, the section on disposal claims such as "recyclable" and "refi llable" re- quire facilities to be available in the area where the product is sold. Collaboration between the manufacturer and distribu- tor to ensure such services exist will help limit inappropriate claims. "They're asking manufacturers to comment on facilities that can accommodate or have ntitled-6 1 a program to recycle that kind of mate- rial," says McKenzie. "I think that's going to be very diffi cult — just in terms of the manufacturer keeping abreast of it — and also a space constraint." Another potential issue with the guide- lines is enforcement, says Vogt. "The weak link here is that, although the Competi- tion Bureau says that it's going to make this a priority, they also say, which is to- tally contradictory, that they're only go- ing to act on complaints," she says. "So unless Greenpeace or a similar organi- zation makes a point of monitoring the marketplace, I'm not sure how much will change. What I think will change is that I think there are really legitimate green companies in the market who care about what they're doing, who have thought about all of this, who are making claims that are correct and accurate, and they think the guidelines will give them some intellectual property CONFIDENCE & CARE Discover why many of the world's most original thinkers rely on Bereskin & Parr for IP guidance. One of Canada's leading intellectual property law firms, we combine depth of expertise with a dedication to tailored service that builds lasting trust. www.bereskinparr.com 1.888.364.7311 TORONTO MISSISS A UG A WA TERLOO MONTRÉ A L www. C ANADIAN Law ye rmag.com SEPTEMBER 2008 55 7/30/08 11:46:04 AM