Marks of Rectitude
Trademarks and certification marks increasingly denote sustainability or social responsibility standards. These marks of rectitude are particularly noticeable in the context of global trade, where market integration is accompanied by relatively uneven integration of environmental, labor and other standards, and where consumers in the so-called global North choose how to empower producers and/or encourage development of markets in the global South. But consumer participation in these transactions is under-explored by reference to criteria such as the quality not to mention accountability and transparency of the standards embedded within the goods or services. Newer stakeholders and meaning-makers such as the largely invisible third party certifier determine whether a product conforms to a standard, which in turn is embodied in a mark. Marks of rectitude can be viewed as a type of decentralized regulation in response to a felt need for heightened social norms. Trademark law potentially can function to mediate between extremely different local conditions within a global market system, to signal not source of manufacturing origin (as in classic trademark law), or geographic origin (as signified by certification marks to provide geographic indication protection in the U.S.), but rather socially responsible practices within a global administrative framework. The "branding" aspect of this decentralized, privatized regulation raises the likelihood of slippage between the mark's function as a reliable indication of source and its newer regulatory functions. Can marks of rectitude bear the weight of the various goals that have proliferated in the global regulatory marketplace? Published as part of an intellectual property symposium exploring the collision of different paradigms, this essay examines how the public law framework provided by the Lanham Act can foster the conditions for consumer participation essential to these various private regimes.