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A trademark is essentially a distinctive sign or an indicator that is used by an individual or an organization in order to identify and distinguish its products or services from those of others in the trade. A market or a commercial space without the existence of trademarks cannot be fathomed.
There are various kinds of trademarks recognized under the Indian statute; examples of few types of trademarks are as under:
- Goods / Service Trade Marks
- Certification Trade Marks
- Collective Trade Marks
- Series Trade Marks
- Colour Trade Marks
- Shape Trade Marks
- Sound Trade Marks MGM Lion Roar
From the different types of trademarks illustrated above, the discussion herein is on the lesser known but widely visible Certification and Collective trademarks.
A Certification trademark is defined under Section 2(1)(e) of The Trade Marks Act, 1999, as a trademark used by entities for certifying the characteristics of the goods or services as being of a certain kind and quality. Certification trademark is an indicator of origin as well as an assurance to the common man that the goods or services, provided under the said ‘Certification Trademark’ have been examined, tested or in some way certified by an independent organization that itself does not trade in those goods or provide the services. The methods of certification are determined by the owner of the certification trademark to indicate or guarantee certain specific characteristics or quality. Popularly known Certification Trademarks are (WOOLMARK) – this certification trademark certifies that the products bearing are made of 100% wool; (ISI) – products bearing the ISI mark certifies that a product conforms to an Indian standard developed by the Bureau of Indian Standards, the national standards body of India; (HALLMARK) – certifies the purity of gold as well as silver jewelry sold in India; (ISO – International Standardization Organization) – certifies assurance of standardization of services provided,; and (AGMARK) –certifies quality of agricultural products in India, assuring conformation to a grade standard set by the Government of India.
A Collective trademark is defined under Section 2(1)(g) of the Trade Marks Act, 1999 as a trademark which distinguishes the goods or services of members of an association which is the proprietor of the trademark from those of the others. Partnership Firms within the meaning of the Indian Partnership Act, 1932 cannot be proprietors of a Collective trademark. A Collective trademark essentially serves as an indicator to distinguish a characteristic feature(s) of the product or service offered by entities that form a part of that Collective or association. A Collective Trademark may be owned by an association which may not directly use the trademark but permits the use by the members of that association. The association duly ensures that certain quality standards and requirements in respect of the relevant goods and services are met by its members. Some prominent examples of Collective Trademarks are – Institute of Chartered Accountants of India, being the apex body of Chartered Accountants in India; and – Confederation of Indian Industries.
Registration procedure of certification and collective trademarks:
For protection of Certification or Collective trademark an application is filed before the Registrar of Trade Marks in the same format of a regular trademark application. The only difference is the additional requirement of a ‘draft regulation’ and a ‘statement of case’. Provisions relating to examination, appointment of hearing, advertisement, opposition, registration and renewal of a Certification and Collective trademark are same as those of a regular trademark.
Draft regulation for a certification mark should consist of inter alia description of the applicant and the nature of its business, information regarding applicant’s infrastructure for research and development, technical manpower, applicant’s competence to administer the relevant certification trademark and the manner of monitoring use of the Certification trademark, the characteristic or qualities which the trademark will indicate in the certified goods or services, an undertaking that the applicant will not discriminate against any entity if such entity meets the requirements laid down in the regulation.
Draft regulation for a collective mark should consist of inter alia name of the association of persons and their respective office addresses, object of the association and conditions for memberships, nature of control the applicant exercises over use of the collective trademark, conditions governing use of collective trademark including sanctions etc.
In the Statement of Case the applicant is required to explain as to how it is eligible to file an application for registration of the Certification or Collective trademark.
Differences between a Collective Trademark and a Certification Trademark
The ability of a Certification Trademark and a Collective Trademark to classify the goods and services of entities as being a part of ‘like-minded groups’ have led to instances of interlinking and confusion amongst the aforesaid marks. In many jurisdictions globally, a Collective and a Certification trademark are treated in the same manner. However, India allows for a clear distinction between the two kinds of trademarks and given below are some of the main differences amongst a Certification and Collective trademark:
- A Certification trademark cannot be registered in the name of the person or organization which itself deals in the manufacture and sale of the relevant goods or renders the relevant services. However, Collective trademark is registered in the name of an association of people or entities who deal in the relevant goods and services.
- Proprietor of a certification trademark can be an individual person or an entity. However, proprietor of a collective trademark is an association of people.
- Certification trademark can be used by any entity which is able to meet the conditions laid down for use of the said Certification trademark by its proprietor. On the other hand, Collective trademark can be used by individuals or organizations who are members of the association in question. In other words, a Collective trademark, essentially, denotes ‘membership’ whereas Certification trademark denotes ‘a characteristic or quality of a product or service’.
- Certification mark can be used by an individual as long as it continues to meet the criteria regarding the characteristics, quality, nature etc. of the relevant goods and services laid down by the proprietor of the Certification mark in question. On the other hand, Collective mark can be used by an individual or entity till it continues of be a member of the association which is the proprietor of the relevant Collective trademark.
- A Certification trademark is not indicative of the distinctiveness of a product or service and only serves as an instrument of standardization of a certain minimum as to the quality of the product or service. A Collective trademark, on the other hand, is a collective symbol, used to enhance the reputation of a product or service in the trade or to allow consumers to associate them with certain reputation.
Benefits of Certification and Collective trademarks:
Both Certification and Collective trademarks are used in addition to an individual or entity’s own trademarks and can help businesses improve their branding vis-à-vis the similar products and services which are not eligible to use the Certification and Collective trademarks.
Any product or service bearing a Certification trademark instantly conveys to the public a certain minimum standard of quality that the product or service comes with. This, in turn, allows the consumers to repose their faith in products or services in the market that conform to minimum standards of quality and assure consumers of the same. The confidence a Collective or a Certification trademark holds in the trade and amongst the investors and consumers at large is immense.
There has remained an element of haze towards the concepts of Certification and Collective trademarks and their respective potential has not been tapped fully in India yet. The key is to create awareness in the society regarding Certification and Collective trademarks and the manner in which the same can assure consumers or clientele of an assured standardization of quality in the products and services. Since there exists intertwining of the concepts due to their similar nature and intent of use, efforts to de-link the two concepts and promotion of the same by way of Governmental and private participation remains the need of the hour.
Authored by: Rommel Pandit & Ruchi Singh.