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6.4.4 Other provisions
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6.4.4.1 Supervision
There should be adequate supervision and control by the owner to ensure, as far as practical, that the goods or services bearing the mark have the required characteristics.
The regulations should provide for the adequate inspection of the goods in the course of manufacture or for the inspection of samples, or any other method that will ensure that the goods offered for sale comply with the stated characteristics. The draft regulations should include the checks that are in place and the timeframe in which inspections will occur. The Examiner will consider these in the context of whether the applicant is competent to certify the goods or services.
An owner may issue the authorised user with a licence or certificate as evidence of their authority to use the mark. This document should state if it is of a limited duration, when it should be renewed and the circumstances in which the owner may cancel it. A copy of this form may be attached to the regulations.
The provision of a register of authorised users and a programme for checking standards would indicate that the owner is adequately supervising and controlling the use of the mark.
6.4.4.2 Right of appeal
A right of appeal to an independent person (frequently the Commissioner) should be available in the regulations where the owner has refused to certify goods or services in accordance with the regulations or refused to authorise the use of the trade mark in accordance with the regulations or where an entity’s right to use the mark has been cancelled.
However, the Commissioner does not have any jurisdiction to award costs to or against another party against a refusal of the owner of a certification mark to certify goods or services or to authorise the use of the trade mark.40
Footnote
40 See section 208(3)(a) of the Trade Marks Act 2002.
6.4.4.3 Fees
The structure and frequency of any fees stipulated in the regulations must be fully described in the regulations and should not be altered without the consent of the Commissioner. If fees are not payable, this should be stated in the regulations.
The fee structure will be considered in light of any public policy requirements or other law which may be relevant to prevent the scheme contravening any legislation.
If the fee appears unduly high the Office can ask for justification of the fee. This is to ensure that any body that applies for the certification mark and meets the specified criteria is not unduly excluded from use on the basis of cost.
