Certification confusion: the (mis)use of certifying marks in New Zealand

Abstract Certification trade marks assure consumers that specific characteristics of goods or services have been certified according to verifiable criteria by an independent third party. Certification trade marks distinguish products in the marketplace, functioning as powerful branding tools and offering a competitive advantage. However, standard and unregistered trade marks are also being used to perform a certifying function, raising significant consumer protection and competition concerns. Drawing on a dataset of 1940 grocery products across 14 product categories, we examine the prevalence and registration status of marks that imply certification and explore their relationship to product attributes, origin and use characteristics. The findings demonstrate that the certifying function is largely carried out by standard and unregistered trade marks, which are often indistinguishable from formally registered certification trade marks. In light of these findings, we argue for policy reforms aimed at improving the clear identifiability and differentiation of certification trade marks. We urge certification trade mark owners to actively ensure their marks are unmistakably distinct from other certifying claims. Additionally, we highlight the critical role of the Commerce Commission in protecting consumers by investigating and addressing potentially misleading practices in the marketplace.