The law regulating certification marks—a close cousin of trademarks—is inadequate to handle the needs of state governments as certifiers. While states play important roles in certifying products, the Lanham Act’s certification mark provisions impose restrictions on certifiers that are designed to rein in self-dealing and anticompeti- tive conduct by private businesses and trade groups. Although these restrictions help ensure that certifiers stick to standards that they promulgate for themselves, this Note argues that these same restrictions do not account for states’ need to consistently update certification standards to fulfill public policy imperatives that are distinct from the commercial motives that private certifiers face. This Note argues that because the Lanham Act is so restrictive, courts, agencies, and Congress should all work to give more latitude to states as certifiers. In doing so, this Note also examines some of the underdeveloped doctrinal areas surrounding certification marks, including the ability to amend a certification mark and the rights-remedies gap for many violations of the Lanham Act’s certification mark provisions.
* J.D., Stanford Law School, 2018. I am grateful to Lisa Larrimore Ouellette, without whose guidance, feedback, and encouragement this Note would not have been possible; to Michael McConnell for his helpful early comments; and to Allison Douglis, whose thoughts and edits throughout the process have been invaluable. Thanks also to the editors of the Stanford Law Review: David Steinbach, Alyssa Picard, Andrew Longhi, Reid Whitaker, Jane Kessner, Amy Madl, Catherine Yuh, Yoni Marshall, Annie Shi, Lori Ding, and Ethan Herenstein. Their hard work is reflected throughout; all errors are mine.