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Jeffrey Belson

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Jeffrey Belson

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Jeffrey Belson

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Jeffrey Belson

Certification and collective marks are special forms of trademarks that ab initio are for the use of multiple sources, subject to the proprietor’s authorization. These marks engender particular issues of law and policy that are related to but distinct from the law and policy of ordinary (or ‘individual’) trademarks. A certification mark indicates that certain characteristics of the marked goods or services conform to particular standards. Collective marks attest primarily to membership of the individual source of the marked goods or services in a particular association such as a trade association. The ensuing chapters explore the historical development of both these types of marks, the connections between them, pertinent trademark law and practice, certifiers’ and membership associations’ liability, legal and commercial significance, use in regulatory and technical standardization frameworks, and emergent sui generis forms of certification, namely ecolabels and electronic authentication marks in digital content. Key words: certification mark; collective mark; law; policy

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Jeffrey Belson

Until the late Middle Ages the craft guilds were the dominant means for regulating and certifying the qualities of goods and workmanship. Craftsmen were required to use their personal mark on their products for traceability and regulatory liability purposes. In addition to the craftsman’s mark, the guild mark, reminiscent of the modern collective mark, appeared on goods to indicate that they originated in the guild. As the power of the guilds waned, from the sixteenth century onwards a personal trademark right began to evolve. The erstwhile regulatory mark used by the craftsman became his trademark, a symbol of goodwill to be valued by its owner. With the advent of the industrial revolution and emergence of the entrepreneurial class a climate of economic liberalism developed that was conducive to the ascendancy firstly of a passing off right and later, towards the end of the nineteenth century, a registration right in trademarks. Key words: history; certification mark; collective mark; trademark

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Jeffrey Belson

In this chapter particular attention is paid to statutory schemes for the registration and protection of certification marks, collective marks, and EU sui generis Geographical Indications. The functions of these marks and indications are discussed in light of the laws and treaties upon which their protection is based. Certification marks are recognized and registrable in the trademark systems of the Anglo-American law countries and the European Union (from 1 October, 2017, except for designations of geographical origin) and many other jurisdictions. Collective marks are provided for in most, but not all, jurisdictions. Indications of geographical provenance, traditionally protected by certification and collective marks, are protected increasingly as Geographical Indications, now widely accepted as a sui generis intellectual property right. The traditional dominance of trademark law in the protection of geographical indications will be challenged further as the EU prepares to extend its sui generis system beyond agricultural products and foodstuffs. Key words: certification mark; collective mark; geographical indication

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Jeffrey Belson

Authoritative undertakings provide third-party attestations of safety, quality or other product attributes to the public and regulators in their certifications, approvals, listings and ‘guarantees’. Therefore, the liability exposure of such undertakings is a matter of key importance for them and other stakeholders in the certification process. This chapter first outlines liability rules in general. Then the principles behind product liability policy and laws potentially applicable to product certifiers are considered under breach of statutory duty (strict liability), tort (negligence) and breach of contract (warranty). Statutory provisions in the UK and other jurisdictions which impose liability for defective products are addressed in the context of the laws governing the sale and supply of goods, and consumer and employee protection. The problems in delineating the boundary of certifiers’ liability are illustrated by references to the case law concerning certification, not only of chattels but shipping as well. Key words: certifier liability; negligence; statutory duty; contract

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Jeffrey Belson

This chapter investigates the legal and commercial significance of certification and collective marks, both of which serve as something other than an indication of the individual source of the product. Certification marks are used to certify conformity of one or more product characteristics to particular standards. Where quality is to be certified, certification marks indicate attainment of a minimum quality level; they do not by themselves facilitate differentiation between superior and inferior goods or services from different sources. The statutory object of a collective mark is to attest to membership of the individual source of the goods or services in an association, which owns the mark. Unlike certification marks, which generally are available for use on all products meeting the standard, use of a collective mark on products is confined to the products of the association’s members. Key words: certification mark; collective mark; geographical indication

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Jeffrey Belson

A certification mark is underpinned by the proprietor’s regulations or standards, conformity to which is a sine qua non for legitimate use and legal protection of the mark. Therefore, the development and implementation of regulations and standards is of major consequence for certification mark owners, particularly when their marks are used for regulatory purposes. This chapter identifies the international frameworks for technical standard-setting. Included is an outline of the principles behind mutual recognition agreements for recognition of product conformity assessment procedures, of which certification is but a part. In addition, the mechanisms promoting common or ‘harmonized’ standards for products are described in light of their declared purpose of eliminating unnecessary technical barriers to trade. Key words: certification mark; collective mark; regulation; standard