Creating consumer confidence or confusion? The role of product certification marks in the market today.

AuthorBarron, Mark R.

INTRODUCTION I. CERTIFICATION MARKS DEFINED A. The UL Mark B. Competition from New Certification Marks II. CONFORMITY ASSESSMENT REGULATIONS IN GENERAL III. USE OF CERTIFICATION MARKS AND THE IMPACT OF CHANGES IN CONFORMITY ASSESSMENT REGULATIONS A. Focus on the United States 1. Product Certification in the Workplace 2. Product Certification in the Marketplace B. Focus on the European Union 1. The New Approach 2. The Global Approach 3. The CE Marking 4. Reflections on the New and Global Approaches IV. PROS AND CONS TO THE RESULTING CHANGES IN THE USE OF CERTIFICATION MARKS V. THE FUTURE OF CERTIFICATION MARKS A. Choosing the "Right" Certification Mark B. Standards Harmonization C. Mutual Recognition Agreements CONCLUSION INTRODUCTION

Certification marks have played and continue to play an important role in the product safety conformity assessment process. These marks are often the end result of extensive product testing and evaluation, and they serve to demonstrate to a consumer or user that the product complies, for example, with industry standards, as determined by the owner of the certification mark. (1)

The process of demonstrating that a product complies with applicable, specified requirements is known as conformity assessment. (2) The standards or requirements involved in the conformity assessment process may be product specific or may pertain to specific phenomena and cover many types of products. (3) Ongoing changes that have occurred in product conformity assessment systems in various countries throughout the world have impacted the role of certification marks. As a result, use of certification marks has changed and the number and types of marks has increased. It remains to be seen, however, whether multiple certification marks displayed on a product will lead to consumer confidence or confusion. Ultimately, the perceived value of these product certification marks may not sustain the high costs of obtaining them.

This Comment explores the changes that have occurred in product certification marks as a result of new regulations that govern their use. Part I outlines the definition of certification marks provided in the Lanham Act. Part II describes the nature of conformity assessment regulations and explores the role of certification marks. Part III focuses on how changes to conformity assessment regulations in the United States and Europe have impacted the role of certification marks.

Part IV continues to examine some of the pros and cons of the increased number of different certification marks in use from the perspectives of product manufacturers and users. Part V then suggests that regulatory legislation and market preferences will continue to drive the importance of certification marks on products and that the increased number of certification marks may not necessarily benefit manufacturers or consumers.

It is certain, however, that manufacturers will face new regulations governing how products are designed, produced, and discarded. Products must meet these regulations before they are allowed to be put up for sale in any given country. From both an economic and legal perspective, it will become even more imperative for manufacturers to have a global compliance strategy in place to ensure compliance with applicable regulations, selection of the "right" certification marks, and an efficient path through the entire conformity assessment process.

  1. CERTIFICATION MARKS DEFINED

    Certification marks in the United States are a unique type of mark and perform a different function from that of traditional trademarks. (4) They have even been described as "special creatures" of trademark law. (5) In fact, certification marks and trademarks are mutually exclusive, and if a mark is used as a certification symbol, it cannot be registered as a trademark. (6) The Lanham Act defines the term "certification mark" as follows:

    [A]ny word, name, symbol, or device, or any combination thereof [that is] (1) used by a person other than its owner, or (2) which its owner has a bona fide intention to permit a person other than the owner to use in commerce and files an application to register on the principal register established by this chapter, to certify regional or other origin, material, mode of manufacture, quality, accuracy, or other characteristics of such person's goods or services or that the work or labor on the goods or services was performed by members of a union or other organization. (7) Certification marks are different from trademarks in that they are not used by the owner and not used to identify and distinguish goods or services of any one party. (8) They are instead used on the goods and services of others to provide a visible guarantee that those goods and services meet standards set by the owner of the certification mark. (9) This function of certification marks carries with it the responsibility of strict control of the use of the mark. (10) A certification mark owner must comply with strict standards of enforcement and control--failure to do so can affect the registration process and the owner's rights in the mark. (11)

    Certification marks are able to be registered in the same manner and with the same effect as are trademarks, by persons, and nations, States, municipalities, and the like, exercising legitimate control over the use of the marks sought to be registered, even though not possessing an industrial or commercial establishment. (12) Subject to limited exceptions, when registered, certification marks are entitled to the protection provided for trademarks. (13)

    1. The UL Mark

      Certification marks used to certify a characteristic or characteristics of a product are the focus of this Comment. An example of such a mark is the UL mark of Underwriters Laboratories, Inc. (UL). (14) For many years, U.S. consumers have relied on the assurance of UL that, among other things, electrical equipment complies with the safety standards that UL sets. (15) The process for obtaining authorization to use the UL mark on a product is determined by UL and involves product testing and follow-up surveillance. (16)

      A manufacturer that desires to use the UL mark on a product must submit representative samples of the product to UL for evaluation and testing. (17) When the evaluation and testing are completed and UL concludes that the samples comply with its standards, the product is eligible for listing with UL and able to display the UL mark. (18) By affixing the UL mark to its products, a manufacturer agrees to ensure that the products continue to be manufactured in compliance with the applicable standards and that the UL mark will not be displayed on products not in compliance. (19)

      In order to control use of the mark and ensure that future manufactured products also conform to the applicable safety standards, UL requires that the manufacturer enter into a follow-up service agreement with UL. (20) The follow-up service agreement provides for a periodic inspection program whereby UL's field inspectors will visit manufacturers that produce UL listed products. (21) When an inspector discovers a product bearing the UL mark that does not comply with the requirements, the inspector has authorization to hold shipment of the product until the issue is resolved with UL or to remove the UL mark from the product. (22)

      For many years, the UL mark of safety on products was, for the most part, the primary choice for manufacturers wishing to have products tested and certified to safety standards for the U.S. market. (23) For reasons discussed in Part III of this Comment, that is no longer the case.

    2. Competition from New Certification Marks

      Today, manufacturers desiring to obtain certification for products to be marketed in the United States have many choices for certifiers, and UL has many competitors. (24) Moreover, certifiers today issue marks not only for product safety, but also for other phenomena such as emissions and immunity, functional safety, and compliance with the standards of other countries. (25) Examples of other product certification marks include the marks of FM Global's FM Approvals unit, Intertek's ETL SEMKO division, Canadian Standards Association (CSA), NSF International, and TUV Rheinland of North America, Inc. (26) Each organization offers several types of certification marks that signify compliance with various phenomena and standards used in other countries. (27)

      The increase in the number, type, and uses of certification marks can be attributed in part to changes in global product safety and conformity assessment regulations. (28) These regulations generally dictate the steps a product must go through to be used or sold in a certain market. (29) In turn, certifiers that participate in these steps to support manufacturers of products who desire to place products on the market have had to adjust the procedures for issuing their certification marks and for controlling the use of the marks. (30)

      Changes in product regulations have, in some cases, given rise to many new certification marks. (31) While certifiers and manufacturers are challenged with the new regulations and competition from new certification marks, consumers are now confronted with understanding the meaning and intent of the marks on the products that they purchase. Manufacturers and consumers alike may benefit from a better understanding of the general concept of conformity assessment.

  2. CONFORMITY ASSESSMENT REGULATIONS IN GENERAL

    "Conformity assessment is defined as a 'demonstration that specified requirements relating to a product, process, system, person or body are fulfilled.'" (32) In other words, it is the process that helps to verify that a product is in compliance with a given set of requirements. The definition seems straightforward, but it can involve many steps and can vary depending on the type and intended use of a product. (33) Granting use of a certification mark is typically the final action of a certifier once the...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT