Certification Marks (original) (raw)

INTRODUCTION

Certification mark refers to a form of trademark which denotes certification of any product or service. It may be a word, symbol, name or device which is used by parties to denote the possession of certain defined characteristics by their products.

Certification may be granted by an organization of National or International accreditation, which may conduct tests to determine which product or service meets the standard required to acquire a certification mark. These marks may be a certification of the following standards:

• The origin of a good or service (Geographical region)
• The quality or method of manufacturing
• Performance of service
• Association with any organization
• Accuracy of other characteristics

A certification mark plays an important role in strengthening the reputation of a product or a service and ensures consumer satisfaction with respect to the standard of the same.

CHARACTERISTICS

A Certification mark differs from a trademark. While the latter is a commercial brand of a product, a certification mark is a guarantee of a certain standard acquired by the product or the service bearing the mark. Following are certain characteristics of a certification mark:

1. The Owner of a Certification Mark can only authorize others to use and does not have the authority to use it himself.
2. The mark is not an indication of a brand or a commercial source which can distinguish goods of one proprietor from another.
3. The mark is merely an indication of possession of a particular characteristic.
4. The use of the certification mark is supervised by the proprietor of the mark to ensure that the required standard is maintained.
5. The proprietor may de-list a specific product or service from the Certification Mark in case of non-compliance with the standards.

EXAMPLES

The following are some common examples of certification marks:

• Agmark for all agricultural products.
• BIS hallmark which certifies the purity of gold jewellery.
• Ecomark is an ecolabel for various products issued by the Bureau of Indian Standards.
• ISI Mark for Industrial products to ensure conformity to the Indian standards.
• FPO Mark which is mandatory for all processed fruit products to ensure conformity with the food safety and standards act if 2006.
• Non Polluting Vehicle Mark required on all new motor vehicles sold in India.

PROVISIONS IN INDIA

The Trade Marks Act , 1999 governs Certification marks in India.

• Section 2(e) of the Act defines Certification mark as “a mark capable of distinguishing the goods or services in connection with which it is used in the course of trade which are certified by the proprietor of the mark in respect of origin, material, mode of manufacture of goods or performance of services, quality, accuracy or other characteristics from goods or services not so certified and registrable as such under Chapter IX in respect of those goods or services in the name, as proprietor of the certification trade mark, of that person”
• Section 2(a) clearly states that any reference to the term “trademark” shall include reference to certification mark as well.
• Section 78 grants the owner the exclusive right to use the registered trademark. The term of registration of certification marks under the Indian Law is 10 years.

Chapter IX of the Act states the provisions regarding Certification marks.

• Section 71, states that the applicant of a certification mark must file to register the trademarks in the required classes. This application must be submitted along with a statement containing the grounds for filing such application as well as a draft for the regulations provided under the act. The registrar may accept or refuse the application based on the following considerations:

(a) Competence to certify the goods

(b) Satisfactory draft regulations under section 74 is satisfactory;

(c) public advantage

• Section 73 also provides for the opportunity for opposition to such registration by any third party for 4 months in the prescribed manner.
• Use of any mark deceptively similar to the certification trademark with respect to the class of goods and services it is registered in would lead to infringement of the mark. Sections 76 and 76 lay down what shall and shan’t be considered as infringement of the certification marks.
• A mark may be cancelled by the registrar in accordance to the provisions of section 77 on the following grounds:

1. Non-competence
2. Failure to observe any provision of the regulations
3. There is no more public benefit to such registration
4. Need to vary the regulations for public advantage if the mark remains registered.

• Further, Section 43 states that a Certification trademark may not be assignable or transmissible without the consent of the registrar.

BIBLIOGRAPHY

• Certification mark applications, USPTO, https://www.uspto.gov/trademarks/apply/certification-mark-applications
• Rachna Sing, Collective Marketing: Adding Value With Geographical Indications, Certification Marks and Collective Marks, WIPO, https://www.wipo.int › sme › wipo_smes_dub_10
• Practice Guidelines, New Zealand IPO, https://www.iponz.govt.nz/about-ip/trade-marks/practice-guidelines/current/certification-marks/#jumpto-1__002e-introduction0
• Singh, A., 2007, June. The role of collective marks, certification marks and geographical indications. In Presentation made at WIPO Asia Sub Regional Workshop on the use of Intellectual Property (IP) by SME Support Institutions for the Promotion of Compet.
• Smit, M.B., 2017. (Un) Common Law Protection of Certification Marks. Notre Dame L. Rev., 93, p.419.
• The Trademarks Act, 1999, Act No. 47 of 1999, Acts of Parliament (India).
• Urfee Roomi, Certification Trademarks in India, https://sc-ip.in/2018/07/30/certification-trademarks-in-india/