A certification mark certifies the nature or origin of the goods or services to which it has been applied. This includes the region or location or origin, materials of construction, method or mode of manufacture or provision, quality assurance, accuracy of the goods or services or any definable characteristic of the goods or services. It can also certify manufacture or provision of services by members of a union or other organization to certain standards. The sole purpose of a certification mark is to indicate that certain standards have been met.
Section 2(1) (e) of Indian Trade Marks Act defines a 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".
A certification mark on a product may indicate the following:
The existence of a product certification agreement between the manufacturer and an organization with national accreditation for both testing and certification;
Legal evidence that the product was successfully tested in accordance with a nationally accredited standard; Legal assurance that the accredited certification organization has ensured that the product that was successfully tested is identical to that which is being offered for sale;
Legal assurance that the successful test has resulted in a certification listing, which is considered public information and sets out the tolerances and conditions of use for the certified product, to enable compliance with the law through listing and approval use and compliance;
Legal assurance that the manufacturer is being regularly audited by the certification organization to ensure the maintenance of the original process standard that was employed in the manufacture of the test specimen that passed the test.
The function of a certification mark, unlike a trademark, is not to indicate source of origin but to certify that the goods or services in relation to which it is applied are certified by the proprietor of the mark as to certain characteristics of the goods or services. The presence of a certification mark on a product or service will give the consumer guidance and the resulting confidence in deciding whether to make a particular purchase or not. A certification mark is used by various merchants to indicate that their products and services have certain characteristics, such as a specific level of product quality or a certain geographic origin.
Certification Marks in India
An application for a Certification mark can be filed as a single or a multi-class application in the prescribed form with the Indian Trade Marks Registry. The form must be submitted along with draft regulations governing the certification mark. The regulations must specify:
- Description of the Applicant;
- The nature of the Applicant's business;
- Particulars of infrastructure like R&D, technical manpower support;
- Applicants' competence to administer the certification scheme;
- Applicants' financial arrangement;
- An undertaking from the Applicant that there will be no discrimination against any party if it meets the requirements set down in the regulations;
- The characteristics of the mark which will be indicated by the certified goods or in relation to rendering of certified services;
- The manner of monitoring the use of the mark in India;
- The people authorized to use the certification mark
- The characteristics to be certified by the certification mark
- How the certifying or standards tests these characteristics and supervises the use of the mark
- Dispute resolution procedures
- Such other relevant particulars as may be called for by the Registrar.
In addition to the above, the applicant is required to submit a statement of case, along with the application, setting out grounds on which it relies, in support of the application.
A certification mark application is similar in many respects to an ordinary trade mark application. Once the application is filed, the proceedings will be similar to that of examination and registration of a trademark application. Typically, the Registrar shall cause the application for registration of a certification trade mark to be identified in the first instance, as to whether it satisfies the requirements purported by the Indian Trade Marks Act. The criteria for determining the registrability of a certification trade mark in India during examination cover similar grounds to those as other trademarks. A certification mark must be capable of distinguishing the certified goods or services but the question of distinctiveness may be decided in a different way as the most important part for consideration is whether the certification mark is capable of distinguishing the certified goods or services from those not so certified, rather than distinguishing the goods or services of one business from the similar goods or services of another business.
Certification marks are generally given for compliance with certain standards, but are not limited to any specific group of enterprises as in the case of Collective mark. For a certification mark to be valid and enforceable, the owner of the mark should not use it with their own goods and services. Instead, the owner can only authorize others to use it. In addition, the owner has to oversee others' use of the certification mark to ensure that the mark is being properly used. Certification marks perform a different role than a normal trademark. Though a certification mark is also capable of distinguishing the certified goods or services in respect to its origin, material, and mode of manufacture or performance of services, quality, or correctness, it can be used only in accordance with defined standards. Certification marks may be used together with the individual trademark of the producer of a given good.
The Registrar is not allowed to refuse, amend, modify, etc. an application, without giving the Applicant an opportunity to be heard. If the Applicant complies with the requirements of the Indian Trade Marks Act, the mark will be accepted in due course. The Trade Marks Registry thereafter advertises the certification mark in the Trade Marks Journal. The mark remains open to opposition by a person interested to oppose the application for registration. If there is no opposition against the proposed registration or the opposition proceedings have been decided in favor of the Applicant, the Trade Marks Registry will proceed to grant the Registration. Assignment or transmission of certification marks is possible but only with the prior consent of the Registrar of Trade Marks, for which an application has to be made in the prescribed manner. This ensures that the new owner is competent to be the approved certifier.
Some Indian the state enforced certification marks are listed below:
- ISI mark used for industrial products which certifies that the products conform to a set of standards laid by the Bureau of Indian Standards
- FPO mark used for processed fruit products in India which certify that the products were manufactured in a hygienic 'food-safe' environment.
- Agmark used on agricultural products to certify that they conform to a set of standards approved by the Directorate of Marketing and Inspection, an agency of the Government of India.
- The Non Polluting Vehicle mark used on motor vehicles to certify conformity to the Bharat Stage Emission standards.
- BIS Hallmark used to certify the purity of gold jewelry.
- The Indian Organic certification mark used on organically farmed food products to certify that the products conform to the specifications of National Standards for Organic Products, 2000.
- Ecomark used on for various products issued by the Bureau of Indian Standards.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.