By Daniel Garcia
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Covid-19 has changed the field of product marketing, trust, and job security. The FTC has been increasingly busy, combating the deceptive practices of companies making false claims about their COVID products. Yet, this isn't new; businesses either purposely or innocently deceive customers with their product marketing during a pandemic or not, resulting in consumers beginning to doubt whether the products accomplish what they state they do. Yet, there is a solution to ease consumer's minds and increase the chance that they buy your product, a subset of trademarks, called certification marks. These marks are more valuable than ever since the pandemic has moved most shopping online, and consumers are unable to determine if the product is to their standard. Luckily, certification marks can provide the same level of guarantee as if a consumer saw the product in the store and certify that it will achieve the desired result.
What is a certification mark?
Many small business owners are familiar with the term trademark and associate it with the idea of keeping their business and product names safe by preventing other companies from using the name without authorization. Others associate it with business or product names they cannot use in their regular course of business. For example, branding a new phone which is not made by Apple as the "Apple iPhone." However, the trademark itself has a subset of different types of marks that offer protection but also prove useful to small business owners. One such mark is a certification mark.
Trademarks indicate the source of a product or service and provide protection, allowing the owner to exclude another person from selling products or services under your registered name. Certification marks, as its name suggests, certify certain products, indicating that the particular good meets a specific standard. Simply, where trademarks distinguish between sources, certification marks express a certification that the product is of a certain quality. There are three types of certification marks that a small business owner can use.
1. A mark demonstrating whether a particular product or service is from a specific geographic region, such as Idaho Potatoes.
2. A mark demonstrating whether a particular product or service has met a specific standard regarding the quality, material, or how they are manufactured.
3. A mark showing that a union member or member of another organization worked on the product or performed the services, or the provider of those services has met a certain standard.
One example of a certification mark that many consumers are familiar with, even if they aren't aware it is a mark, is the U.S. Environmental Protection Agency's "Energy Star" registered certification mark. A company's product that meets a certain level of energy efficiency, as determined by the EPA, may place the mark on their products. The mark gives consumers confidence if they are seeking energy-efficient devices that a product bearing that mark is energy efficient. If you are eager to see more examples of the three different certification marks, you can visit the U.S. Patent and Trademark Office site and read more about how they differ from Trademarks here.
Why is it important?
Today, customers are far more selective in the products they purchase as well as the companies they are buying products from. They consider whether the products are safe to use, produced in an environmentally friendly way, or if they come from a specific region. Certain products are only allowed to use a particular region in their name if they come from that region. Some examples are Champagne, France, Idaho Potatoes, and Roquefort cheese. Environmentally friendly products and services have also increased in popularity, and several different organizations have established certification marks to guarantee to consumers that the products or services have met a socially acceptable level. There are countless certification marks for eco-friendly products, but you can see a small list of 25 different eco-friendly certification marks here. However, certifications are not limited to these categories and range across all products and services on the market. They include certifications for food and drink products, carbon monoxide alarms, fire extinguishers, and even to safety certifications of products regarding their ability to handle extreme temperatures or threat of fire. There are also certifications for legal entities, such as B-Corp certifications, that meet the high standards of social and environmental performance, public transparency, and legal accountability to balance profit and purpose.
You may be asking, why is this important for my small business? Well, small business owners should understand that companies carrying certification marks have met specific requirements authorizing the use of the mark, and it is not a simple marketing ploy to sell products. While sometimes certain symbols may be a marketing design to elicit customers to buy products, many times, it is a certification mark. It can be easy to mistake a certification mark as a generic statement, which can lead to infringing a certification mark without intending to. Recently, Williams-Sonoma was fined for misleading customers with their "Made in USA" claim. While it is not a certification infringement case, it illustrates how easily one can make this mistake. Williams-Sonoma deceptively claimed that all or virtually all of its products were made in the U.S. If a small business were to do the same and place a "Made in USA" mark that they have seen on other products without authorization, they would likely be subject to an infringement claim. Even if the small business did source and manufacture their products entirely in the U.S., the use of a registered certification mark without authorization or compliance with specific requirements can result in infringement and various legal issues --- a costly mistake for small business owners.
One certification mark that results in continuous enforcement actions by its registered owner is Bluetooth technology. Small business owners manufacturing electronics may not realize that Bluetooth is a mark that certifies the standard for short-range wireless connectivity. Without authorization from the owner, the use of the mark can result in halting shipments, lawsuits, and other issues that cause your small business to cease operation until the company resolves the problems.
What can I do to use certification marks safely?
To help small businesses comply and avoid running afoul of certification mark complexities, I have outlined a few steps a small business owner can take to lower their risk.
1. When using a mark found on other products or services, research the mark to check if it is a certification mark and requires registration, as well as if your product or service complies.
2. Do not use a certification mark, unless your product or service has been certified or authorized by the mark owner.
3. Do not design a mark that is conspicuously similar that may confuse consumers that the product is certified by the registered certification mark owner.
The list above is not exhaustive and only a simple guide to lower small business owners' risk. To determine whether your product or service is within compliance of certification marks or to seek guidance to reduce your risk of infringement, you can contact one of the several law firms listed near the end of this article.
How can certification marks help my business?
Certification marks can be intimidating, but they offer a wide variety of advantages for small business owners. As mentioned above, consumers are becoming increasingly aware of how companies are developing their products, their level of care for the environment, but also seeking products that benefit their health. Certification marks can prove fruitful by giving consumers confidence in the product they are buying, that it will be up to the standards they want. Certifying your product, whether it is eco-friendly, health-oriented, or meeting a strict food standard, will allow the customers to quickly choose your product, but also make your product more desirable than your competitors. Here are some categories of certifications that can help boost your product demand.
Health
Small businesses can reach customers who have their health at the forefront of their minds. Health is more important now since many consumers are pursuing healthier lifestyles since they have a higher risk of the dangers of COVID-19 because they are obese and have respiratory issues. There are various certification marks that companies can use to guarantee their consumers that the product they are consuming is healthy. For example, the American Heart Association established the Heart-Check Food Certification program in 1995 that allowed customers to identify heart-healthy foods. I'm sure many of your consumers have seen these Heart-Check symbols on the original Cheerios boxes as well as their commercials. Utilizing different health certification marks, whether it is for food, exercise equipment, or any service or product, will help influence a consumer's choice and promote your business. It will not only allow the consumer to choose your certified product over non-certified products, but also give the consumer trust that they are receiving a high-quality product.
Food Standards
While health certification marks give consumers a wide variety of healthy choices, there is also a consumer base that has no other choice but to select specific types of food. For example, many consumers can only eat certain products due to health, religion, or personal preference. These include gluten-free, Halal, Kosher, and Organic foods. You can find a list of different food-oriented marks here. For a small business owner, these certification marks bring in customers for a variety of reasons. It is estimated that about 1 in 100 people have celiac disease (an autoimmune disease that causes damages to the small intestine when gluten is ingested), and 4 in 100 have a wheat allergy and are unable to eat gluten without pain. Given that gluten is in a wide variety of products, a small business can utilize the gluten-free mark and establish a product line specific to these consumers. Also, foods such as Kosher and Halal must be prepared in a certain way to be consumed. These consumers rely on the certification for their health or religious preference. Small business owners can expand their customer base by utilizing the certifications to guarantee to the consumer the type of product they are buying, bring more options to the consumers, and with proper marketing, bring in more revenue.
Eco-Friendly
Small business owners can also utilize environmentally friendly "green marks" to expand their customer base. Society has become increasingly concerned with the rapid changes to the environment because of industrialization. Many consumers are shifting their tastes to more eco-friendly brands. According to the Natural Marketing Institute study, 20% of Americans will boycott a company if they aren't participating in social responsibility, and 48% are more likely to try a product or service if the company is taking steps to be socially and environmentally friendly. Additionally, 64% of Millennials said they would purchase more eco-friendly products or services if they were available. Participating in eco-friendly processes in small businesses and utilizing "green-marks" can help expand their customer base, increase the number of customers who try their product or service, and increase their product output. Eco-friendly steps will also reduce the risk of customers boycotting their company for failing to take social responsibility into account.
The certification categories mentioned above are only a few; a small business owner can look to other certifications no matter the field their products or services occupy to help give customers the peace of mind in buying their products. Utilizing the marks and being aware of their status can help prevent infringement but also increase their user base.
Still not certain?
Certification marks are no different than other types of law; it is complicated. There will be situations where there is clear infringement or non-infringement. Yet, the cases that cause the most headaches are the ones that are too close to call. Where it can be almost impossible to determine if the use is infringing or not, these are the cases where experienced counsel will be the most valuable. Whether the situation is difficult or simple, trademark lawyers can help small business owners avoid costly litigation down the line but also determine whether their current products are infringing another's mark. Here are several nationwide firms that can help your small business.
· Cooley
Take Away
Certification marks serve a continuous purpose of guaranteeing to the purchasing customer that the product has met a certain standard. Whether the certification is ensuring the source such as Idaho potatoes, a healthy product, or that the product is eco-friendly, utilizing these certification marks can be fruitful if done correctly. Given the times we are in, consumers are shopping more online and unable to inspect many products visually. Certification marks can give the consumer some peace and assurance that they are buying a high-quality product a valuable tool for small business owners. Best of luck in certifying your products and expanding your customer base!
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