By choosing to get a normal trade mark, Rainbow Tick bypassed the check that makes sure it is competent to do the certification it says it does, writes Dr Jessica Lai
Rainbow Tick lists 60 organisations that have paid for the pleasure of using its trade mark to signal they are diverse and inclusive.
An RNZ article on May 29 suggested the Rainbow Tick is a mere “box-ticking” exercise. It did so by bringing forth employees of Rainbow Tick “certified” organisations whose experience contradicted the claim the Rainbow Tick shows an organisation is “progressive, inclusive and dynamic”.
That the process is a box-ticking exercise is further supported by the legal nature of the Rainbow Tick. The Rainbow Tick website states that “Rainbow Tick is a certification mark”. It is not.
Rainbow Tick is a normal trade mark. This distinction matters.
We are surrounded by normal trade marks. ‘Samsung’, ‘BMW’, ‘Sanitarium’ and ‘Coca Cola’ are examples. The purpose of normal trade marks is to act as a “badge of origin” – they tell consumers about which trader a good or service comes from.
It is difficult not to be cynical when Rainbow Tick chose to register a normal trade mark, which allows for a non-transparent certification process against an opaque standard.
Certification trade marks are rarer. Some common examples are ‘Environmental Choice New Zealand’, ‘Fairtrade’ and ‘New Zealand Made’. Certification trade marks tell consumers nothing about which trader a good or service comes from. They cannot, since many traders can use them.
Instead, certification trade marks indicate some quality or characteristic about the good or service itself. Furthermore, they tell consumers an independent third party has certified that the relevant quality or characteristic is true. For example, when a consumer sees the Fairtrade trade mark on chocolate, the consumer knows Fairtrade has made sure the farmers of the cocoa in the chocolate have decent working conditions and pay.
The standards a certifier of a certification trade mark uses are public. They are published on the Intellectual Property Office of New Zealand (IPONZ) website. Anyone can see what exactly the mark signifies.
The Rainbow Tick is not this.
As stated by RNZ, “Details of the certification process and the standards that workplaces have to uphold are not publicly available ….” All we know from the Rainbow Tick website is the “certification process tests whether a workplace understands and welcomes sexual and gender diversity” by evaluating an “organisation’s level of LGBTTI inclusion in five areas”: Policies, Staff Training, Staff Engagement & Support, External Engagement, and Monitoring.
It tells us nothing about how Rainbow Tick evaluates these factors or how much “inclusion” is sufficient.
Moreover, in order to register a certification trade mark, the Commissioner of Trade Marks must be satisfied that the certifier:
– is competent to certify the goods or service
– the proposed standard (“regulations that govern the use of the certification trade mark”) is satisfactory
– the registration would be in the public interest.
The standard cannot be changed without the Commissioner’s permission.
By choosing to get a normal trade mark, Rainbow Tick bypassed this check. We do not know it is competent to do the certification it says it does. The registration may not be in the public interest, but we do not know because its standard is not public.
In a similar vein, the Rainbow Tick’s standard might not be consistently applied across different organisations. Perhaps Rainbow Tick assesses every organisation differently.
This being the case, the implication in the RNZ article that the Rainbow Tick is merely a marketing tool rings truer. It is difficult not to be cynical when it chose to register a normal trade mark, which allows for a non-transparent certification process against an opaque standard.
There can be little doubt Rainbow Tick purposefully made the decision to register a normal trade mark and not a certification trade mark. The agent listed on its registration, AJ Park, is one of the largest and most experienced providers of specialist intellectual property services in New Zealand.
Some of the certified organisations and individuals within them undoubtedly believe in the Rainbow Tick’s mission of “accepting and valuing people in the workplace, embracing the diversity of sexual and gender identities”.
However, if Rainbow Tick were serious about its role, it would have applied (and still could apply) for a real certification trade mark and not just claimed to have one.