Certification is simply a designation earned by a person or a product signifying certain attributes and qualities to differentiate it from the multitude.
There are, for example, certifications for professionals, designated to perform a job or a task. Likewise trade certifications also exist.
One such example is the “certification mark” under Trademark Law, usually given for compliance with defined standards.
In India, ISI (governed by an act of parliament) and certain other marks like Woolmark and Agmark are popular. The entity which applies for such registration must be an organization “competent to certify” the products.
Under the Trade Marks Act, 1999, a certification trademark is a mark capable of distinguishing goods or services in connection with their use in the course of trade.
The mark identifies them as certified in respect of origin, material, mode of manufacture of goods or performance of services, quality, accuracy or other characteristics that separates them from goods or services not so certified.
A certification mark can be any word, name, symbol, device or any combination thereby distinguishing certified products and services from non-certified ones.
The distinguishing function of the marks makes them one form of intellectual property rights.
Recently, Genome Valley in Hyderabad, Andhra Pradesh, was issued a registration certificate for a certification mark by the United States Patent & Trademark Office (USPTO).
Genome Valley is India’s first state-of-the-art biotech cluster. It provides infrastructure to more than 100 biotech companies for research, training, collaboration and manufacturing.
The result of its certification is that any biotechnological product patent application from Genome Valley is assured to be innovative and backed by quality research.
In another instance, a certification mark has been developed by the Agricultural and Processed Food Products Export Development Authority (India) (APEDA) for agricultural products being exported. The “Quality Produce of India” mark will be owned by APEDA and only exporters whose produce or products conform to the prescribed parameters would be allowed to use the trademark for exports.
APEDA plans to register this certification mark globally and its use will be governed by a set of regulations.
Registering a mark
The functional difference between a certification trademark and other trademarks makes several provisions of the Trade Marks Act, 1999, inappropriate for certification trademarks.
A certification trademark is not registrable in the name of a person who carries on a trade in goods because it does not indicate a connection between the goods and the proprietor of the certification mark.
Instead, the certification distinguishes certified goods from goods that are not so certified.
But this does not mean that the mark should not be distinctive.
The mark must be distinctive, either inherently distinctive and adopted to distinguish the goods in question, or in and of itself, a way to distinguish certified goods and services.
Provisions of the Trade Mark Act not applicable to certification trademarks are related to grounds of refusal of registration, the rights conferred by registration, infringement of registered trademarks, restrictions on assignment and transmission, non-use of trademarks and offences and penalties, except the penalty for falsely representing a trademark as registered.
The application for the registration of a certification mark is made to the registrar.
The application has to be accompanied by a draft of the regulations governing the use of the certification trademark, including the provisions that deal with when the proprietor will certify the goods or services and authorize the use of the certification trademark.
The regulations may include provisions conferring a right to appeal to the registrar against a refusal to certify goods or to authorize the use of the certification trademark.
Certification trademarks serve a very special purpose but are less known than typical trademarks, perhaps due to their orientation towards benefit of consumers in procuring quality goods or performance of services.
These marks are noteworthy in today’s fading territories and exponentially growing exports.
In this scenario, a product adhering to some specific standards and certified by a competent authority, instills confidence in consumers and also leads to the growth of the economy.
Abhai Pandey is a lawyer with LEX ORBIS IP Practice, a firm specializing in intellectual property with offices in New Delhi.
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