Managing the Legal Nexus Between Intellectual Property and Employees
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Managing the Legal Nexus Between Intellectual Property and Employees

Domestic and Global Contexts

Edited by Lynda J. Oswald and Marisa Anne Pagnattaro

The explosion in intellectual capital coincides with a growing understanding of the importance of human capital to the firm. This book examines the pressing legal issues that arise at the intersections of intellectual property law, employment law, and global trade, such as the use of employment contracts to protect intellectual property, ownership of intellectual property created by the employee, officer liability issues relating to infringement, post-employment confidentiality and non-compete agreements, and inadvertent or deliberate misappropriation or theft of trade secrets.
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Chapter 4: Certification marks as private employment regulation

Jamie Darin Prenkert


This chapter will address a mechanism through which private ordering occurs, such that intellectual property can be used to create private employment and labor regulations. Certification marks can be used as the bases for certification and labeling systems that require adopters/licensees to commit to particular processes, practices, or behaviors that are intended to benefit workers. These can range from the prohibition of child labor to nondiscrimination commitments, and from wage and hour protections to health and safety standards, to name just a few. The chapter first provides the background on what certification marks are and how they undergird many certification systems, particularly those focused on social goals like the protection and ethical treatment of workers. It then provides a rough taxonomy of certification systems as they relate to employment and labor regulation, providing examples of five such approaches. Finally, the chapter identifies four characteristics – embodied in four questions – that inform how likely it is that the use of certification marks would effect change for workers, the intended beneficiaries of these private regulatory systems. Prior to examining current examples of certification and evaluating how they might affect employment and labor conditions, this part provides an explanation of certification marks and a brief description of the history of certification. McCarthy describes certification marks as “special creatures” of trademark law.

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