Collective and certification marks: when quality counts
Trade marks exist to inform customers of the source of the goods and services that bear them. Many trade mark owners invest considerable resources in building up a reputation around their trade mark to make it synonymous with high quality – and therefore desirable to customers. But each mark is specific to the business that registered it. What if you want to assure consumers of the quality of an entire industry or service sector?
This is where two different types of trade mark come into play. “Collective” and “certification” marks act as a guarantee that the individuals, businesses, or products using them conform to certain requirements. These are typically standards or features that make them more desirable to consumers.
A collective mark is typically owned by an association whose members are permitted to use it to signify their membership of the organisation. Well-known examples include the CA symbol belonging to the Institute of Chartered Accountants and the Girl Scouts logo.
A certification mark indicates that the goods or services bearing it have been created, manufactured, or otherwise produced or services carried out in accordance with the regulations set out by the mark’s proprietor. Well-known examples include the Energy Star accreditation, governing the energy efficiency of goods, and the Fairtrade mark, signifying that the producers of the goods have been fairly paid and treated.
One familiar subset of certification marks are those that cover Geographic Indications (GIs) too. GIs are signs or geographical names that show consumers that a product (usually a foodstuff) has been produced within the designated region, which usually signifies particular qualities or reputation. When a certification mark is paired with a GI, this further bolsters the protection and standardises quality, as the certification mark will often include regulations such as using traditional methods to produce the goods. Examples include Champagne, Parmigiano Reggiano, Scotch Whisky, and Stilton Cheese.
Why collective and certification marks are important
Certification and collective marks are designed to give consumers confidence in what they are being offered. This can cover everything from product or service quality to safety. As such, companies operating in the fields covered by the mark can become very keen to obtain the mark. In the first instance, this is to differentiate themselves from competitors and show a commitment to excellence. Once a mark becomes established as a signifier of safety or quality and is widely adopted, however, it can become the industry standard, with consumers unwilling to buy from organisations that *don’t* have the mark. An example is the Gas Safe Register (formerly known as CORGI) which is the certification mark and regulatory body for gas safety with a remit to ensure that gas engineers are qualified to work with gas installations and appliances. Most consumers would expect anyone offering them gas-related services to hold this certification.
This brings us a to key point about certification marks: you can’t register a certification mark for products you produce yourself. Certification marks must be owned by an independent body that has a robust mechanism in place for auditing the organisations and products wishing to use the mark and ensuring that standards are maintained. Looking at the services now provided by CORGI, it seems likely that the decision to transfer the certification function to the Gas Safe Register may have been driven by a desire by CORGI to provide services in the gas safety compliance sector.
The importance of regulations
In the UK and many other jurisdictions, applying for a certification or collective mark is a two-stage process. The first is the application for the mark in relation to the relevant goods and services. This is examined by the IPO to determine whether the applied-for mark is capable of functioning as such.
The second stage is the submission of the regulations that organisations or products must comply with in order to use the mark. These must be as complete and clear as possible so examiners – who may not be expert in the industry in question – can establish that they genuinely function as a means of differentiation for organisations or goods.
Speaking at a recent CITMA webinar, the UK IPO’s lead examiner for certification and collective marks, Mark Studley, said that regulations pose the biggest problems for examiners and urged applicants to base their submissions on the relevant sections of the Trade Marks Act 1994 (or the equivalent legislation in the relevant jurisdiction). This means clearly stating who will be entitled to use the mark, what they must do to qualify to use it, what fees they will pay and what the process is for resolving any disputes over use of the mark. You must also explain the sanctions to be imposed should an entity or individual misuse a mark.
If you aim to be the proprietor of a collective or certification mark, you need to show that you have sufficient resources to administer the scheme or association. It’s no good saying you will audit the safety activities and qualifications of every gas fitter in the UK if you are a solo practitioner, for example.
Making your mark in the world
Getting a certification mark successfully registered is just the start. Once you have done so you need to market it among your target group and build a reputation associated with it.
For the mark to retain its value, you must govern it rigorously to ensure no organisation or individual is using it in a way that would bring its reputation into question. This means auditing its use and monitoring users to check that the required standards are being maintained. The success of the mark will be contingent on the perceived competence and integrity of its proprietor, so it is essential that you have strong governance in place.
Proprietors of certification marks have the same rights as standard trade mark holders against infringement of the mark by third parties, so it is also important to keep a watch on the market and any new trade mark applications to prevent others from benefiting from your mark’s credibility.
Collective and certification marks as a force for good
Collective and certification marks are an interesting aspect of the intellectual property protection landscape. Gaining the right to use them can become highly desirable among organisations as a signifier of quality and ethical business practices. As consumers increasingly use factors other than simple price, availability and quality to make purchases, we may see more certification marks in particular spring up providing assurance on social, environmental and governance issues relating to the business in question. While it is not (yet) a certification mark, but is registered as a trade mark, the B Corp certification from B Lab is an example of a certification scheme that is gaining significant traction in the business world, with approved businesses authorised to use its logo and “Certified B Corporation” in communications. As businesses aspire to achieve such certifications, the proprietors of recognised marks can use their influence to drive up standards in the industry in which they operate.