The owner of the mark exercises absolute control over the use of the mark. However, as the sole purpose of a certification mark is to indicate that certain standards have been met, the use of the mark is made by others.
Section 2(1) (e) of Indian Trade Marks Act
Defines 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". Therefore, CERTIFICATION by the proprietor of the certification trade mark, in respect of origin, material, mode of manufacture of goods or performance of services, quality, accuracy or other characteristics is the basis of a certification trade mark.
The function of a certification mark is not to indicate trade 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 nowadays 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. Despite the fact that a geographic term cannot be used as a general trademark or service mark if it merely serves to indicate geographic origin, the same restriction does not apply to certification marks.
A number of countries also provide for the protection of certification marks. 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. It can be used by any entity which can certify that the goods involved meet certain traditional standards. 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 Mark performs a different role than a normal trademark. Though the 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 label used as a certification mark will be evidence that the company's products meet the specific standards required for the use of the certification mark. Well-known certification marks include WOOLMARK which certifies that the goods on which it is used are made of 100% wool.
ISI mark is a certification mark employed on industrial products in India by the Bureau of Indian Standards. "India Organic" will be granted on the basis of compliance with the National Standards for Organic Production (NSOP). AGMARK is a certification mark employed on agricultural products in India, assuring that they conform to a set of standards approved by the Directorate of Marketing and Inspection, an agency of the Government of India. Presence of certification mark known as Standard Mark on a product is an assurance of conformity to certain specifications.
The registration procedure of trademark in India are evenly applicable to certification marks except that draft regulations governing use of the certification mark approved by the Registrar must be deposited at the Indian Trade Marks Registry.
The criteria for determining the registrability of a certification trade mark in India during examination cover similar grounds to those for other trade marks. A certification mark must be capable of distinguishing the certified goods or services but the issue of distinctiveness may be decided in a different way as the most important part for consideration is whether the certification trade 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.
On acceptance, the Registrar must notify the applicant and advertise the decision for opposition as in the case of a normal trade mark acceptance. Once acceptance of the certification trade mark is published in Indian Trade Marks Journal, the registration may only be opposed on any of the grounds of opposition provided for in the Trade Marks Act 1999. These grounds include usual grounds for rejection during examination, with the exception of the ground relating to whether a mark is capable of distinguishing. The approval procedure takes the same form as for the issue of a certificate by the Registrar for an application for registration of a certification trade mark.
Assignment or transmission of certification marks in India is possible with the consent of the Registrar of Trade Marks. This is to ensure that the new owner is competent to be the approved certifier.
The grounds for rectification for normal trade marks in India generally also apply to certification trade marks. There are also additional grounds on which a certification trade mark may be cancelled or an entry in the Register may be rectified by order of the Intellectual Property Appellate Board (IPAB) of India, on the application of a person aggrieved. These grounds relate to the registered owner's competency to certify goods or services, the rules governing the use of the certification trade mark, and failure to comply with the rules. The IPAB may also make orders for varying the rules, on application of a person aggrieved.
Advocates, Patent & Trademark Attorneys
EF7-10, Vasanth Nagar, Palarivattom
Cochin-682 025, INDIA
Tel:+91484 2337856 / 6457856
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