As consumers, we are used to scanning products in stores and on supermarket shelves for brands and labels. We understand the power of branding and the value of trade marks. Increasingly, we are now seeing products also bearing certification labels and claiming certain qualities or characteristics such as:
Consumer confidence in these type of product claims depends on the integrity of the certification program but also the integrity of companies that use and apply a certification label.
Choice, a consumer watchdog in Australia, recently reported on animal testing labelling and called for more information to be available for consumers so that those who want to choose products which aren’t tested on animals can do so. Choice’s investigations revealed that there are inconsistent and confusing claims about animal testing being made leaving the consumer confused about whether the product they are buying has or has not been tested on animals. Earlier this year, the international organisation Oxfam, also publicly questioned the practices of some major brand owners that claim sustainability and ethical production but breach their own claims.
Trade marks are a ‘ badge of origin’, in the sense that they indicate a connection in the course of trade between the marked goods and the person who applies the trade mark to the goods (usually the owner of the trade mark or someone licensed by the owner of the trade mark). However, a trade mark is not necessarily a representation as to quality, a trade mark indicates that the products or services provided under the mark meet a standard that is acceptable to the trade mark owner, whether that standard be high or low.
A certification trade mark is a trade mark that has been applied to goods or services certified as having a particular quality or characteristic. Certification marks do not indicate trade origin but should be a representation that the product or service meets the certified characteristic(s) or quality. Products and services can be certified by independent third parties, for example, Choose Cruelty Free and The Leaping Bunny are independent third parties that certify products as not having been tested on animals. Other companies are ‘certifying’ their own products and this practice has been questioned by numerous consumer advocacy groups concerned that consumers may not always be getting what they think they are buying.
In Australia, the procedure for registering a certification trade mark is far more onerous than the procedure for registration of an ordinary trade mark. The applicant must file extensive rules governing use of the certification mark and those rules are assessed by the Registrar of Trade Marks and the Australian Competition and Consumer Commission (ACCC) for compliance with the Trade Marks Act and the Competition and Consumer Act. For further information on the certification marks see here [PDF 261.5KB].
A company wishing to use a certification mark will be permitted to use the mark subject to compliance with the relevant rules. For example, the company Choose Cruelty Free will only certify products as not being tested on animals and authorise the use of its certified trade mark if those products and their ingredients have not been tested on animals and the products are not sold in countries where animal testing is required by law (for example, China). So, the application of the bunny certification mark should be a representation that the product and the ingredients used to make the product have not been tested on animals. The certification trade mark represents the integrity of the supply chain and the end product and gives consumers the confidence that the product they are buying is what they think they are buying.
Companies that apply certification trade marks or very similar marks to their products when their products do not meet the certification criteria are misleading and deceiving consumers and in some cases infringing registered trade marks. Significantly, consumers are not getting what they think they are buying.
By Amanda Jones