Re-certifying trademark law

Thesis

This thesis provides a comprehensive treatment of certification marks as a part of trademark law. Certification marks are an infrequently discussed area of trademark law in the legal scholarship. The reality of certification marks is misaligned with the legal conception of certification marks as they are currently projected by trademark law statutes. The objective of this thesis is to interrogate the nature of certification marks, especially their core feature: what I term the certifying function. Therefore, I consider the nature of the certifying function, and how it is best conceptualised in the context of today’s marketplace practices, consumers’ expectations, and nature of meaning. I provide an analytically descriptive contribution by arguing that certification marks today exist on a spectrum, from bare to robust. Accordingly, what all marks that perform a certifying function—certification marks and other marks that I term pseudo-certification marks—share is the ability to signal attestation source. Contrary to the understanding of certification marks informed by the informational-efficiency account of trademark law, certification marks do not necessarily allow consumers to distinguish between goods or services that are certified to a particular standard by communicating information about the nature of the certification from those that are not so certified. The crux of the certifying function, and thus certification marks, is not the provision of truthful and objective information. This thesis demonstrates that the certifying function is best conceptualised as a vehicle for relational trust, and not the provision of truth. I conclude that rather than reform certification marks to better centre the certifying function as a vehicle for trust, we ought to abolish certification marks. Instead, ordinary trademarks can better perform the certifying function. This approach is more congruent with the justifications of trademark law and consistent with current marketplace meaning as informed by brands.

Authors: Mogyoros, A

• DOI: 10.5287/ora-mvvp5zkgj
• Type of award: DPhil
• Level of award: Doctoral
• Awarding institution: University of Oxford
• Language: English
• Keywords: brands; trademark law; private governance; intellectual property; verification; trade mark law; certification; trust; certification marks; ethical branding; logos
• Subjects: Certification mark; Intellectual property; Trademarks; Intellectual property (International law)