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Turning Up The Heat: Sustainability & Branding In The F&D Sector – Trademark


Sustainability is becoming more and more critical for businesses
across all markets, nowhere more so than in Food & Drink. High
packaging volumes, increased consumer awareness and concern about
ethical sourcing and provenance, and the need for reliable yet
affordable labour all provide their own challenges for F&D
businesses – but also a great platform to be (and be seen as)
more sustainable.

But what really is a sustainable brand and what are the
challenges in branding innovative products which are sustainable,
ethical and responsible?

What is sustainability?

It’s worth taking a step back and asking first what
sustainability really means; these days it’s about much more
than just the environment. A good place to start is the United
Nations’ 17 Sustainable Development Goals
(SDGs). These are
“a shared blueprint for peace and prosperity for people and
the planet, now and into the future”, the goal being to
achieve all of them by 2030.

The 17 SDGs encompass topics including poverty, hunger, health,
education, gender equality, clean energy, innovation and
infrastructure, sustainable cities, responsible consumption,
climate action and peace, justice and strong institutions.

Thanks to demands from governments, the public, and employees,
companies are increasingly embracing the SDGs. More and more
businesses believe that focusing on sustainability (including the
environment, diversity & inclusion and social responsibility)
is the right thing to do. But it also makes financial sense; a
focus on sustainability is also more likely to appeal to consumers,
help recruitment and impress investors. And in a world where fuel
prices are rocketing and supply chains are interrupted, it’s
becoming increasingly essential.

What about consumers?

To quantify the impact that consumer behaviour is playing in all
of this, we need look no further than the latest sustainability survey conducted by
Deloitte and YouGov. Unsurprisingly, this confirms that UK
consumers are increasingly making conscious decisions based on
sustainability, for example:

  • 40% of respondents have chosen brands that have environmentally
    sustainable practices/values (up 34% on last year)

  • 34% have stopped purchasing certain brands or products because
    of ethical/sustainability-related concerns about them (up 28% on
    last year)

  • 37% have chosen brands that have ethical practices/values (up
    30% on last year)

And Food & Drink is at the forefront of this. The first two
findings above were found to apply in grocery more than in any
other sector, while in the case of the third, grocery came second
only to clothing/footwear. Furthermore, 7% of consumers (again with
grocery topping the scores) have contacted a brand to raise an
issue on their sustainability or ethical practices/values. That may
sound like a small number, but when you consider the total
population of the UK, that’s a lot of issues being raised.

This thirst for information from consumers has also led to
increasing numbers of “sustainability rankings” and
awards, for example “11 Sustainable Food Brands You Should Know
” (Abel & Cole), the Sustainable Brand
(which ranks 1,500 brands across 35 industries and
eight countries) and the Marie Claire Sustainability Awards which
includes F&D amongst others.

It’s clear that consumers, especially young consumers, are
increasingly seeking out sustainable brands, showing loyalty to
them and rejecting or avoiding those about which they have
concerns. In short, whether F&D companies want to or not, they
have to be more sustainable to survive. Which in turn
presents a huge opportunity for brands which get it right, but
likewise a significant risk for those which get it wrong.

A sustainable trade mark strategy?

This seismic shift in branding is already, inevitably, having an
impact on how trade marks are chosen and used. Since the
fundamental role of a trade mark is to enable consumers to identify
the origin of a product with confidence, we are seeing increasing
numbers of trade marks being filed which convey sustainable
credentials – including word marks, slogans, and
non-traditional marks.

The three main challenges we see resulting from this trend

  1. More limited choice – Companies want to
    tell consumers what they stand for, but this often leads to the
    choice of a name with descriptive qualities or elements which have
    already been snapped up by someone else. Essentially, it’s
    harder to come up with a strong yet available brand name in a
    crowded space and when you’re fishing in a smaller pool.

  2. Challenges of enforcement – If your name
    is less distinctive, you will necessarily have a narrower scope of
    protection versus third parties. We saw this last year when Oatly failed to stop rival oat milk brand
    because the respective marks were deemed not
    sufficiently similar for a finding of confusion or damage.

  3. Risk of greenwashing – The authorities
    are increasingly cracking down in an attempt to protect consumers.
    Companies need to think very carefully about the colours, names and
    imagery they are choosing and if they are positioning themselves as
    “sustainable”, they must be able to back up
    their claims (more on this below).

With consumers often prepared to pay a premium for sustainable
products that appeal to their own social standards, it will be more
important than ever to ensure that trade marks are protected and
enforced. If a savvy shopper buys a brand that fails to deliver on
its sustainability promise (either because it’s found lacking
itself or because it is a counterfeit or a lookalike), that
consumer may be lost for good. So choose well, protect carefully
and enforce sensibly.

Third party seal of approval?

Reinforcing the emphasis on credibility, we also anticipate a
potential growth in the registration and use of certification
marks, collective marks and other eco-labels which can be used on
products or packaging that meets certain conditions –
effectively to give third party “seal of approval”.

Examples include Fairtrade, the Forest Stewardship
(FSC), PlanetMark, Ethical Accreditation from The Good
Shopping Guide, Rainforest Alliance and, what is generally
deemed to be the “gold standard” of sustainability
certifications and is especially popular in the F&D sector,
B Corp.

Even this can sometimes be controversial, however, as we saw in
April 2022 when Nespresso was awarded B Corp status,
despite ongoing concerns from consumers, fair trade groups and competitors about
Nespresso’s sustainable credentials, in particular regarding
alleged human rights violations on farms that grow its coffee.

A sustainable “stable”?

Another trend we are seeing is the return of the house mark ie
the importance of the company brand and what it stands for. See,
for example, the UK home pages of Unilever
and Nestle, two massive brand-led FMCG
companies whose home pages don’t even list the brands; instead,
they are all about what the companies stand for and educating
consumers. The aim is clearly to portray a “sustainable
stable” ie if the company itself is socially and
environmentally conscious and credible, then all of their products
must be too.

We see this not just in companies’ websites but also in how
they choose to present themselves and what they share on social
media. Premier Foods are just one company of many whose LinkedIn account features more posts about
mental health, volunteer work and D&I than about its cakes and

Brands are also increasingly willing and indeed keen to speak
out on political issues where previously they might have preferred
to keep quiet, considering this wasn’t their job. This growing
“politicisation” of brands is well demonstrated by the
hugely famous US ice-cream brand Ben & Jerry’s who have
long been vocal in speaking out about their values and social issues they care about, including
LGBTQ+ rights, climate justice and refugee rights. Perhaps more
controversial was
Wetherspoons’ launch of 500,000 “Brexit beer
in its pubs before the 2016 EU referendum which
later led to an accusation it had breached the Companies Act.

Consumers are far more open to brands taking these kinds of
stands than in the past, but companies should think carefully about
their current (and target) consumers when deciding whether and how
to enter the political fray. One wrong move could cause irreparable
damage to a reputation and a fatal alienation of consumers. Above
all else, the stand needs to be authentic and in keeping with the
brand’s existing identity and values.

A sustainable match made in heaven?

We are also seeing more choices of partnership based first and
foremost on shared values. Considering Ben & Jerry’s strong
social credentials, it was perhaps not surprising to see them
teaming up in August 2022 with another “impact company”,
chocolate brand Tony’s Chocolonely, whose mission it is to end
modern slavery in chocolate. What was more interesting, however,
was how the advertising surrounding the tie-up focused
so much more on the companies’ shared values than on the actual
new products (which were limited edition Ben & Jerry’s
chocolate bars and Tony’s Chocolonely’s ice cream). Is that
what they thought their consumers wanted to see, or was it driven
by their own vision, or perhaps a bit of both?

We expect to see more of these kinds of collaborations,
sometimes with two equally sustainable brands, but sometimes with a
“more sustainable” brand working with another less
experienced brand, to lend both expertise and credibility to the

As ever, it’s worth remembering the challenges such
partnerships can bring from a branding perspective, including a new
name to clear and protect, the need to file top up trade mark
applications for new products, and potential disputes around
ownership. It’s always worth discussing such issues and
reaching an agreement early on in negotiations.

A claim too far?

Clearly, then, there is a huge demand for sustainable brands in
the F&D sector and, accordingly, a huge opportunity, but
it’s crucial the claims are authentic and genuine. The risks
associated with getting it wrong can be broadly classified in to 3
key areas:

  1. Consumers – Being caught greenwashing is
    often worse in the eyes of consumers than not trying to be
    sustainable in the first place. When consumers start to smell a
    rat, they start to doubt the credibility and authenticity of a
    brand. Thanks to the power of social media, stories can break and
    spread incredibly quickly and cause untold damage in a matter of

  2. Groups of individuals – Brought together
    by shared interest and aims on social media, we are increasingly
    seeing the banding together of consumers, resulting in powerful
    campaigns, brand boycotts and even class actions brought before the
    courts to challenge brands on their apparent environmental

  3. Authorities – More and more keen to
    protect consumers from greenwashing claims, brands have two main
    authorities to keep on side in the UK. First, the Advertising Standards Authority (ASA), the
    UK’s independent regulator of advertising, who have form in
    banning TV advertisements if they think the claims made are
    unsubstantiated and unclear. Second, the Competition and Markets Authority (CMA)
    who work to promote competition in the UK (working closely with
    ASA). The CMA have issued specific guidance on how to avoid
    greenwashing, including the “Green
    Claims Code Guidance
    “, warning they will look at
    advertisements as a whole (including names, colours, packaging,
    imagery, logos, slogans) to see how consumers are likely to
    perceive them. They’re also not scared to launch their own
    investigations in to both specific companies and sectors as a

Businesses can’t be too careful if they are making
“green” claims, to avoid both reputational and financial
damage should they be caught out.


The focus on sustainability and the increasing drive from
consumers has had a massive impact on the Food & Drink sector
in recent years. It remains to be seen whether this will be slowed
by the current significant economic challenges faced by vast
numbers of consumers.

In the longer term, however, the trend looks set only to
continue, thanks to the limited supplies of the planet, and brands
need to plan ahead if they are to survive.

Steps companies should take now include :

  • Liaising with branding and marketing colleagues to identify
    opportunities and threats

  • Making sure that any sustainability claims stand up to

  • Monitoring what competitors are doing

  • Working with trade mark attorneys to make sure branding is on
    point and well protected

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.


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