Late last year, Fairfax reported that Australian Egg Corporation Limited had their “free range” egg certification trademark rejected by the Australian Competition and Consumer Commission (“the ACCC”).
The ACCC’s initial assessment of the certification trade mark application considered that the rules (which govern the use of the certification trademark – if registered) may mislead or deceive consumers regarding the nature of a certified egg production process described as ‘free range’. Interested parties (including the trademark applicant) were given 1 month to comment on the ACCC assessment and a number of parties did so.
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However, the ACCC did not need to provide a final assessment (in light of those comments) on the allowability of the trademark because Australian Egg Corporation Limited withdrew their trademark application on 14 January 2013. Details of the initial assessment and comments may be found here.
Certification trademarks are a peculiar type of trademark which allows the owner of the trademark the exclusive right to use and allow other people to use the certification trademark. The purpose of these trademarks is to indicate to consumers the quality or accuracy or characteristics of the goods with regard to certain standards. However the certification trademark must include rules governing its use.
Any applicant for a certification trademark before the Australian Trademark Office must file a copy of the rules which govern the use of the trademark. Generally speaking, the rules must include what the certification requirements are for the goods and services, the way in which the goods and services meet the requirements, how a person is selected to approve or reject whether goods or services meet the requirements and dispute resolution mechanisms.
As well as the usual examination by the Australian Trademark Office (under section 41 etc) the certification trademark must be assessed and approved by the ACCC before the trademark can be accepted. An adverse decision from the ACCC may be appealed to the Administrative Appeals Tribunal.
The Australian Trademark Office manual of practice and procedure helpfully sets out the various steps involved in obtaining a certification trademark.
There are presently 420 registered certification marks on the Australian trademark register.
Below are some examples of certification trademarks which you may be familiar with.
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Interestingly the rules governing the cetification marks are not available from the Australian Trademark Office Database – rather they are available from the IP Australia website here.