The Relationship Between Certification Mark and Collective Mark Under Trademark Law
As per the Indian Trademark Act, 1999, section 2(g) defines a collective mark as “a trade mark distinguishing the goods or services of members of an association of persons”. A certification mark on the other hand, as per section 2(e), means “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.”
The provisions between sections 61 to 68 under the Trademark Act govern the use of and protection offered to collective marks. As a general trade mark principle, these marks cannot be misleading to the public. All applications for collective marks are required to comply with regulations that detail manner of use of such marks. These regulations are a subject of inspection under the law.
Similarly, sections 69 to section 78 form the provisions for the use of certification marks in India and the application of certain provisions of the Indian trademark law are excluded for certification marks. These include some of the absolute grounds for refusal, and other provisions related to application, advertisement of the application, rights conferred on the applicant and some provisions with respect to offences and penalties.
Generally, certification marks are used to assert that a particular good/service conforms to a certain standard. These standards may be with regard to technological aspects, safety, environment etc.
A similar, yet unlike form of trademark is a collective mark. A collective mark is a trademark which instead of being used by a seller or provider to indicate the source of the goods or services, is “used by the members of a cooperative, an association, or other collective group or organization.”
For instance, a mark to indicate associations of agricultural producers attributable to a particular geographic origin or collective membership marks indicate association with a group as opposed to membership-based indicators of source. For instance, “The letters AAA inside an oval device indicate membership with the American Automobile Association. These letters perform the role of a collective mark.” These marks are there to let the consumers assess quality of a product which may not be apparent to the consumer when he/she purchases it or when he/she experiences a service. These qualities are referred to as “credence attributes”.
The purpose of certification marks is to act as a disciplinary mechanism in a supply chain. These marks guarantee standards with respect to the “material, mode of manufacture, quality, accuracy, or other characteristics”. For instance, ISO cooperates with International Electrotechnical Commission (IEC), which is responsible for standardization of Electrical Equipment.
The Relation Between Certification Marks and Collective Marks
Often, certification marks are grouped with collective mark- the prime reason being the ability of both the marks to classify the good/service as a part of a “group of a-likes”.
In many jurisdictions, the industrial property laws treat guarantee marks or certifications marks as collective marks. However, unlike certification marks, collective marks are trademarks with an underlying product or service which is affiliated with “members of a cooperative, an association, or other collective group or organization,” such as a union instead of an individual mark holder.
A collective mark in a sense denotes ‘membership’ whereas a certification mark denotes a characteristic of the good or service. However, it can also talk about the quality of service/good. When collective marks indicate that the source of the goods or services is an organization or a
member of the organization that owns the collective mark, such organizations may have mandated certain standards for membership. Thus, collective marks may secondarily communicate certain information about the quality of the goods or services.
Certification marks, on the other hand, can be used by anybody belonging to a group providing a particular type of goods or services so long as they comply with the standards established by the owner of the certification mark. In India “Agmark” is certification mark used for food items. .
BIS formulates Indian standards and lays down parameters for the products, which are prepared by Technical Committees. BIS certification mark is made compulsory for items meant for mass consumption, consumer safety, health and energy.
Article 7bis of The Paris Convention, incorporated into TRIPS Agreement through Article 1(2) provides for the protection of collective marks. In the United States, collective marks are often used to indicate regional origin. On the other hand, in the EU, certification and collective marks exclude goods and services of geographic origin from their ambit.
A Collective mark is normally used to certify the quality of the goods/services. For example, one could think of a wine company that aims to create a wine region and wishes to promote wine produced by independent growers from that region. The collective mark can be used by these wine growers who have to meet certain standards of being a member of the association.
In terms of geographical origin, collective and certification marks offer a certain level of protection, often as a local private initiative which is independent from the governmental initiative.
Though geographical terms standing alone are usually excluded from registration as individual trademarks, the same geographical terms are often acceptable for use with collective or certification marks. The rationale behind it is to avoid reserving the right to use a geographical term to a single proprietor. If a geographical term is registerable as a collective mark or certification mark depends upon the laws of a country as certain jurisdictions exclude offering protection to the geographical names as “collective marks or certification marks, or the registration of GI’s already protected under a sui generis system as collective or certification mark.”
Collective marks are often confused with certification marks. In some jurisdictions, a certification mark is used to authenticate the conformity of a product or service to certain specific rules or technical specifications in terms of quality, nature, applied material and/ or methods. Hence, certification mark is affixed on products or services subject to certain conditions. However, it does not indicate the distinctiveness of a product or service and only serves as an instrument for standardization of minimum quality aspects.
The legal function protected by the certification mark is related to the conformity of products and services to a certain standard or quality, whereas a collective mark distinguishes products or services belonging to certain groups, supported by agreed common rules of use from those of other entities/proprietors/members who do not follow and share the same rules of use.
Hence, the collective mark is a collective symbol, used to enhance the reputation of a good or service in the market or to allow the consumers to associate them with a certain reputation and certification mark denotes the standard of good or service. In many jurisdictions, certifications marks are treated as collective marks, while, in others , these are distinct .