Creating Consumer Confidence or Confusion? The Role of Product Certification in the Market Today

INTRODUCTION I. CERTIFICATION MARKS DEFINED A. The UL Mark B. Competition from New Certification Marks II. CONFORMITY ASSESSMENT REGULATIONS IN GENERAL III. USE OF CERTIFICATION MARKS AND THE IMPACT OF CHANGES IN CONFORMITY ASSESSMENT REGULATIONS A. Focus on the United States 1. Product Certification in the Workplace 2. Product Certification in the Marketplace B. Focus on the European Union 1. The New Approach 2. The Global Approach 3. The CE Marking 4. Reflections on the New and Global Approaches IV. PROS AND CONS TO THE RESULTING CHANGES IN THE USE OF CERTIFICATION MARKS V. THE FUTURE OF CERTIFICATION MARKS A. Choosing the "Right" Certification Mark B. Standards Harmonization C. Mutual Recognition Agreements CONCLUSION INTRODUCTION Certification marks have played and continue to play an important role in the product safety conformity assessment process. These marks are often the end result of extensive product testing and evaluation, and they serve to demonstrate to a consumer or user that the product complies, for example, with industry standards, as determined by the owner of the certification mark. (1) The process of demonstrating that a product complies with applicable, specified requirements is known as conformity assessment. (2) The standards or requirements involved in the conformity assessment process may be product specific or may pertain to specific phenomena and cover many types of products. (3) Ongoing changes that have occurred in product conformity assessment systems in various countries throughout the world have impacted the role of certification marks. As a result, use of certification marks has changed and the number and types of marks has increased. It remains to be seen, however, whether multiple certification marks displayed on a product will lead to consumer confidence or confusion. Ultimately, the perceived value of these product certification marks may not sustain the high costs of obtaining them. This Comment explores the changes that have occurred in product certification marks as a result of new regulations that govern their use. Part I outlines the definition of certification marks provided in the Lanham Act. Part II describes the nature of conformity assessment regulations and explores the role of certification marks. Part III focuses on how changes to conformity assessment regulations in the United States and Europe have impacted the role of certification marks. Part IV continues to examine some of the pros and cons of the increased number of different certification marks in use from the perspectives of product manufacturers and users. Part V then suggests that regulatory legislation and market preferences will continue to drive the importance of certification marks on products and that the increased number of certification marks may not necessarily benefit manufacturers or consumers. It is certain, however, that manufacturers will face new regulations governing how products are designed, produced, and discarded. Products must meet these regulations before they are allowed to be put up for sale in any given country. From both an economic and legal perspective, it will become even more imperative for manufacturers to have a global compliance strategy in place to ensure compliance with applicable regulations, selection of the "right" certification marks, and an efficient path through the entire conformity assessment process. I. CERTIFICATION MARKS DEFINED Certification marks in the United States are a unique type of mark and perform a different function from that of traditional trademarks. (4) They have even been described as "special creatures" of trademark law. (5) In fact, certification marks and trademarks are mutually exclusive, and if a mark is used as a certification symbol, it cannot be registered as a trademark. …