Hijacking Consumer Trust Systems: Of Self-Declared Watchdogs and Certification Trade Marks

Consumers are becoming more demanding about the social and environmental conditions surrounding how products and services are made and provided. Aware of this trend, marketers have incentives to use social- or green-washing, to match consumers’ desire to purchase conscientiously. A newer marketing trend is “pink-washing”, where companies express their “wokeness” (or social-cultural progressiveness) about sexual and gender identity to sell their goods and services. One way to combat this is via certification trade marks, examined and registered through intellectual property offices, which consumers use as a trust system. However, there are companies that use normal or unregistered trade marks and claim to perform certifications. They are taking advantage of the trust system. This article undertakes a case study of “Rainbow Tick” in Australia and New Zealand to illustrate that it is relatively easy to exploit rising consumer concerns around social and environmental issues by hijacking the trust system of certification trade marks. This article proposes that we need to rebuild the trust system through four measures: (1) applications for normal trade marks that could mislead or deceive that they are certification trade marks should be rejected; (2) failure to apply for a certification trade mark (when the intention is to use the mark as a certification trade mark) should be deemed an application made in bad faith; (3) all certification trade marks should have “Cert. TM” on them, or otherwise indicate their nature; and (4) education programmes should ensure that consumers understand the distinction between normal trade marks and marks with “Cert. TM”, and what exactly this embodies.