Anglo and EU Frameworks for Certification and Collective Trademarks

Abstract

Ordinary trademarks promise consistent quality. This promise is the quid pro quo for the trademark proprietors’ right to control the goodwill symbolized by the mark. Subject to external regulatory controls (safety standards, truth in labeling laws, etc.), it is largely up to the trademark proprietor to set those standards. If a firm wants to attach its brand to a chocolate product containing low levels of cocoa butter, that is its prerogative. It will be motivated to do so if consumers signal their approval with purchases. Certification trademarks, in contrast, promise consumers consistency with a pre-defined set of standards. This chapter, to be published in the Cambridge Handbook on International and Comparative Trademark Law (Ginsburg and Calboli eds.) discusses certification and collective marks in the Anglo tradition. The Anglo tradition will be illustrated by the provisions in the U.K. Trade Marks Act 1994, but reference will be made to the laws of other common law jurisdictions where there are salient distinctions. The chapter also outlines the new European Union framework. It discusses some of the important characteristics of these marks, focusing on the application of the distinctiveness standard for certification marks as well as any relevant controls on the administration of this species of trademark. Finally, the chapter briefly considers infringement issues. It concludes with some brief reflections on the social role of certification trademarks as “private governance” vehicles.