Marks of rectitude

Fordham Law Review

Volumn 77, Issue 5, 2009, Pages 2311-2351

  Chon, Margaret ^a  

^a NONE

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EID: 66749168250     PISSN: 0015704X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (267)

1. Daniele Giovannucci, How New Agrifood Standards Are Affecting Trade, in TRADE-WHAT IF? NEW CHALLENGES IN EXPORT DEVELOPMENT: CONSUMERS, ETHICS AND ENVIRONMENT 99, 100 (2008) [hereinafter WHAT IF?].
2. A "trademark" in this essay denotes trademarks and service marks, registered or not. Collective marks and certification marks (CMS) are treated as separate categories, unless otherwise noted.
3. Although there is no consensus on this definition, "sustainability standard" in this essay denotes a standard that addresses some aspect of ethical or fair trade, such as labor or environmental practices. Both ethical trade and fair trade focus on management of a product's value chain according to principles of social, environmental, and financial responsibility, but the latter addresses specifically the trading relationship between the global North and the global South. Carlos Fortin, International Commerce and Ethical Trade, in WHAT IF?, supra note 1, at 37, 38. Through this essay, global "North" is used interchangeably with the term "developed countries" and global "South" with "developing countries."
4. As used in this essay, the term "trademark law" covers federal law as well as the common law of trademarks and unfair competition.
5. See generally Mark A. Lemley, Intellectual Property Rights and Standard-Setting Organizations, 90 CAL. L. REV. 1889, 1904 (2002) (focusing on patents);
6. Joseph Scott Miller, Standard Setting, Patents, and Access Lock-In: RAND Licensing and the Theory of the Firm, 40 IND. L. REV. 351 (2007);
7. Janice M. Mueller, Patent Misuse Through the Capture of Industry Standards, 17 BERKELEY TECH L.J. 623, 628 n.31 (2002) (focusing on patents but also citing cases on copyright).
8. International Organization for Standardization, Discover ISO, http://www.iso.org/iso/about/discover-iso-isos-name.htm (last visited Feb. 18, 2009). Because the acronym for "International Organization for Standardization" would vary across languages, its founders also gave it the short, "all-purpose" name "ISO." The official U.S. representative to ISO is the American National Standards Institute (ANSI), and its documents indicate reliance on certification marks without much elaboration of their role in standard setting. AM. NAT'L STANDARDS INST., NATIONAL CONFORMITY ASSESSMENT PRINCIPLES FOR THE UNITED STATES 8 (2002), available at http://publicaa.ansi.org/sites/apdl/Documents/ News%20and%20Publications/Brochures/NCAP.pdf.
9. Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations, Apr. 15, 1994, Agreement on Technical Barriers to Trade, Annex 1A, Legal Instruments-Results of the Uruguay Round, 33 I.L.M. 1125 (1994) [hereinafter TBT Agreement]. See generally Gabrielle Marceau & Joel P. Trachtman, The Technical Barriers to Trade Agreement, the Sanitary and Phytosanitary Measures Agreement, and the General Agreement on Tariffs and Trade: A Map of the World Trade Organization Law of Domestic Regulation of Goods, 36 J. WORLD TRADE 811 (2002), reprinted with revisions in 18 WTO DISPUTE SETTLEMENT SYSTEM 1995-2003, at 275 (Federico Ortion & Ernst-Ulrich Petersmann eds., 2004).
10. Increasingly, health and safety issues along the value or supply chain may be implicated in standards (melamine contamination in agrifood products or heparin in pharmaceutical products). Giovannucci, supra note 1, at 99 (estimating five thousand deaths and seventy-six million illnesses in the United States per year from food-related conditions). This essay focuses more on labor and environmental standards and less on health and safety standards, which are subject to different overlapping regulatory regimes, both nationally and internationally. See Douglas A. Kysar, Preferences for Processes: The Process/Product Distinction and the Regulation of Consumer Choice, 118 HARV. L. REV. 525, 550, 558-62 (2004) (discussing the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement) on the international level, and the Food and Drug Administration (FDA) and U.S. Department of Agriculture (USDA) jurisdiction over genetically modified organisms and organic foods on the national level).
11. Margaret M. Blair, Cynthia A. Williams & Li-Wen Lin, The Roles of Standardization, Certification and Assurance Services in Global Commerce 3-4 (Vanderbilt Law & Econ., Research Paper No. 08-16, 2008), available at http://ssrn.com/abstracts=120503.
12. Id. at 4;
13. see also Ricardo Meléndez-Ortiz, Trade and Equity in a World Where Goods Carry Carbon Passports, in WHAT IF?, supra note 1, at 79;
14. John H. Barton, Intellectual Property and Access to Clean Energy Technologies in Developing Countries: An Analysis of Solar Photovotaic, Biofuel and Wind Technologies 2 (Int'l Ctr. for Trade & Sustainable Dev., Issue Paper No. 2, 2007) (describing how the Kyoto Protocol created a Clean Development Mechanism (CDM), "leading to a supervised market in 'carbon credits'").
15. Naomi Roht-Arriaza, Shifting the Point of Regulation: The International Organization for Standardization and Global Lawmaking on Trade and the Environment, 22 ECOLOGY L.Q. 479, 487 (1995). The 1992 United Nations Conference on Environment and Development (UNCED) provided impetus for "eco-labelling." Id. at 481-91;
16. accord Errol Meidinger, Multi-Interest Self-Governance Through Global Product Certification Programs, in RESPONSIBLE BUSINESS? SELF-GOVERNANCE IN TRANSNATIONAL ECONOMIC TRANSACTIONS 259 (Dilling et al. eds., 2007). These eco-labels now include energy efficiency, management of biodiversity, animal welfare, low carbon footprint, no use of chemicals, wildlife protection, and more.
17. Mary E. Footer, The Role of "Soft" Law Norms in Reconciling the Antinomies of WTO Law 2-3 (Soc'y of Int'l Econ. Law, Working Paper No. 54/08, 2008), available at http://papers.ssrn.com/sol3/papers.cfm? abstract-id=l 159929 ("The term 'soft law' in international law and international relations is often used to characterise a variety of extra-legal or non-legal norms, which are 'in the twilight between law and politics' and which, while deliberately of a non-binding character, have legal relevance." (footnotes omitted));
18. see also id. at 12-14 (discussing relationship between ISO and TBT).
19. DOUGLAS MURRAY, LAURA T. RAYNOLDS & PETER LEIGH TAYLOR, ONE CUP AT A TIME: POVERTY ALLEVIATION AND FAIR TRADE COFFEE IN LATIN AMERICA 27 (2003), available at http://www.colostate.edu/depts/sociology/ FairTradeResearchGroup/doc/fairtrade.pdf ("Fair Trade seeks to challenge existing relations in the global economy by example, using consumer/producer alliances: to create an alternative pricing system based as much on social justice concerns as on economic factors; to eliminate unnecessary intermediaries who capture excessive portions of the price attached to commodities; and to transform transnational corporate practices, at times in spite of corporate efforts to the contrary, to address social and environmental concerns at both ends of the production/consumption continuum. It is an alliance with the capacity to transform participants throughout the Fair Trade continuum.").
20. See generally FAIR TRADE: THE CHALLENGES OF TRANSFORMING GLOBALIZATION (Laura T. Raynolds, Douglas L. Murray & John Wilkinson eds., 2007) [hereinafter FAIR TRADE].
21. The International Trade Centre, which is a joint agency of the WTO and the United Nations, views this trade paradigm as a viable alternative to the pure WTO model. Its slogan is "Export Impact For Good." See generally International Trade Centre, Export Impact for Good, http.7/www.intracen.org/welcome.htm (last visited Feb. 18, 2009). Other agencies, such as the Food and Agriculture Organization, support this view. See generally ALICE BYERS, DANIELE GIOVANNUCCI & PASCAL LIU, VALUE- ADDING STANDARDS IN THE NORTH AMERICAN FOOD MARKET: TRADE OPPORTUNITIES IN CERTIFIED PRODUCTS FOR DEVELOPING COUNTRIES (2008), available at ftp://ftp.fao.org/docrep/fao/010/al585e/al585e.pdf.
22. GAVIN FRIDELL, FAIR TRADE COFFEE: THE PROSPECTS AND PITFALLS OF MARKET-DRIVEN SOCIAL JUSTICE 63 (2007) (quoting fair trade coalition FINE statement: "Fair Trade is a trading partnership, based on dialogue, transparency and respect, that seeks greater equity in international trade. It contributes to sustainable development by offering better trading conditions to, and securing the rights of, marginalised producers and workers-especially in the South. Fair Trade organisations {backed by consumers) are engaged actively in supporting producers, awareness raising and in campaigning for changes in the rules and practice of conventional international trade." (emphasis added)). Gavin Fridell calls this the "decommodification" perspective. Gavin Fridell, Fair Trade and Neoliberalism: Assessing Emerging Perspectives, 33 LATIN AM. PERSP. 8, 20-21 (2006)
23. TOM ROTHERHAM, TRADE KNOWLEDGE NETWORK LABELLING FOR ENVIRONMENTAL PURPOSES: A REVIEW OF THE STATE OF THE DEBATE IN THE WORLD TRADE ORGANIZATION 12-14 (2003) (expressing a right of information);
24. Peter S. Menell, Structuring a Market-Oriented Federal Information Policy, 54 MD. L. REV. 1435, 1445 (1995) (framing the issue as one of informed consumer choice);
25. Kysar, supra note 8, at 610-17 (positing a right to expression and participation in civic live through consumer choices).
26. This essay excludes the perspectives of buyer firms and other stakeholders in the middle part of the value chain. Others have examined how firms might discipline each other through private ordering to ensure quality control throughout the chain. See generally Blair et al., supra note 9;
27. Meidinger, supra note 11, at 262 (describing pressures brought by nongovernmental organizations (NGOs) upon Home Depot and Lowes to commit to buying certified wood products);
28. Roht-Arriaza, supra note 11, at 534-37 (proposing a system for better third-party certification). A certification carries producer-specific paperwork and very tangible traceability and thus may be more important to intermediaries in the value chain than certification marks, which are aimed at consumers.
29. Laura T. Raynolds & John Wilkinson, Fair Trade in the Agriculture and Food Sector: Analytical Dimensions, in FAIR TRADE, supra note 13, at 33,41.
30. U.S. CONGRESS, OFFICE OF TECH. ASSESSMENT, OTA REP. NO. TCT-512, GLOBAL STANDARDS: BUILDING BLOCKS FOR THE FUTURE 2 (1992) [hereinafter OTA REPORT].
31. Sustainability has become a huge factor within marketing and advertising of goods. Notes from WEDF Conference, Trade, What If? (Oct. 8-11, 2008) (on file with author) [hereinafter WEDF Notes]. For example, Marks & Spencer's sustainability advertising campaign is "There is no Plan B." Id. Price Waterhouse has a similar slogan: "Doing nothing is not an option." Id.
32. See generally Kysar, supra note 8.
33. U.S. Green Bldg. Council LEED Certified USGBC, U.S. Trademark Serial No. 77199311 (filed June 6, 2007). CMs are also emerging from relative obscurity, partly because they are the legal mechanism through which the United States implements protection of geographical indications as obligated by the WTO Trade-Related Aspects of Intellectual Property (TRIPS). Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex IC, Legal Instruments-Results of the Uruguay Round, arts. 22-24, 33 I.L.M. 1125 (1994) [hereinafter TRIPS Agreement]; see infra Part I.
34. See OTA REPORT, supra note 18, at 9-10;
35. Blair et al., supra note 9, at 10;
36. Daniele Giovannucci & Stefano Ponte, Standards as a New Form of Social Contract? Sustainability Initiatives in the Coffee Industry, 30 FOOD POL'Y 284, 289 (2005).
37. Meidinger, supra note 11, at 270-73 (describing confusion in competing standards in organic agriculture, apparel, and fisheries sectors). For example, Wall Street firms supposedly are being certified for compliance to standards in the single area in which there are generally accepted standards-financial auditing. And yet, we have recently seen a number of financial scandals related to lack of regulatory oversight, both public and private.
38. See Michael Lewis & David Einhorn, Op-Ed., The End of the Financial World as We Know It, N.Y. TIMES, Jan. 4, 2009, at 9 (recommending checks on misleading ratings created by credit agencies Moody's and Standard & Poor's).
39. Institut Nat'l Des Appellations d'Origine v. Brown-Forman Corp., 47 U.S.P.Q.2d (BNA) 1875, 1885 (T.T.A.B. 1998);
40. see also 3 MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 19:90 (4th ed. 2008) [hereinafter MCCARTHY] (citing Florida v. Real Juices, Inc., 330 F. Supp. 428 (M.D. Fla. 1971); Restatement (Third) of Unfair Competition § 11 (1995)).
41. Meidinger, supra note 11, at 268 ("Labeling requirements, rather than being mere technical matters, are forums for policy debate and competition."); Margaret Jane Radin, Online Standardization and the Integration of Text and Machine, 70 FORDHAM L. REV. 1125 (2002) (noting that standards are simultaneously technical and legal); Jane Winn & Nicholas Jondet, Better Regulation for Consumers: Integrating ICT Standards and Consumer Protection (Dec. 4, 2008), available at http://ssrn.com/abstract=1303061 (evaluating the possibility of embedding consumer protection within ICT standards). Standards are as old as trade itself because merchants have needed to know precisely what is being bought and sold through weights and measures. Philip Weiser claims that the first notable U.S. national standard was for railroads during the Civil War, which "helped the North win the war (on account of its superior supply chain management)." Philip J. Weiser, Making the World Safe for Standard Setting 4 (Univ. of Colo. Legal Studies Research Paper No. 08-06, 2008), available at http://papers.ssrn.com/sol3/papers.cfm?abstract-id= 1003432#.
42. Steve Charnovitz, Accountability of Nongovernmental Organizations (NGOs) in Global Governance 38 (George Washington Univ. Law Sch. Pub. Law & Legal Theory, Working Paper No. 145, 2005), available at http://ssrn.com/abstract=716381 ("Just as private corporations are being subjected to claims of triple bottom line and corporate social responsibility, similar transfigurational ideas are being applied to international organizations and their treaties. In my view, it is the NGOs, acting as 'transnational norm entrepreneurs,' who, along with the publicists, are leading the way in these developments.").
43. Errol Meidinger, Beyond Westphalia: Competitive Legalization in Emerging Transnational Regulatory Systems 2 (Univ. of Buffalo Law Sch., Buffalo Legal Studies, Research Paper No. 2006-019, 2006), available at http://papers.ssrn.com/sol3/papers.cfm?abstract-id+917952
44. Kysar, supra note 8, at 617;
45. see also Steve Charnovitz, International Standards and the WTO 13-14 (George Washington Univ. Law Sch. Pub. Law & Legal Theory, Working Paper No. 133, 2005), available at http://papers.ssrn.com/sol3/ papers.cfrn?abstract-id=694346.
46. Blair et al., supra note 9, at 16.
47. David J. Teece, Profiting from Technological Innovation: Implications for Integration, Collaboration, Licensing and Public Policy, 15 RES. POL'Y 285 (1986) (arguing that "complementary assets" such as distribution and service mechanisms are necessary for innovators to benefit from newly developed product protected by law).
48. OTA REPORT, supra note 18, at 18.
49. Radin, supra note 25, at 1130-32.
50. Giovannucci, supra note 1, at 107 (noting that most producers encounter five barriers in dealing with standards: difficulty selecting a standard; facilitating adopting standards; generating and acquiring capital; transaction costs; and managing risks).
51. For example, the international standard-setting organization, ISO, charges for standards published in documents available through its website.
52. Roht-Arriaza, supra note 11, at 500 ("The quality control standard also portended the possibilities and dangers ahead. The ISO 9000 series quickly became a de facto requirement for doing business in Europe and other parts of the world. Companies required proof through an independent, registered 'certifier' that their suppliers and subcontractors complied with the standard."). The standards associated with good agricultural practices of the Global Partnership for Safe and Sustainable Agriculture (Global-GAP) have become a de facto requirement for agrifood trade with most European Union (EU) countries. WEDF Notes, supra note 19.
53. Harriet Lamb, Fairtrade: Working to Make Markets Fair, in WHAT IF?, supra note 1, at 59; Meléndez-Ortiz, supra note 10, at 79, 84.
54. This issue of proliferation has also affected agricultural producers, who find it hard to "keep up with and even to understand the standards. [One researcher] finds that many standards and codes of practice have been driven by Northern consumer and NGO perceptions of business responsibility and have been more ad hoc rather than comprehensive and consultative." Giovannucci, supra note 1, at 106.
55. Lemley, supra note 5, at 1901-03. This is especially true in industries such as information and communications technology (ICT) where compatibility and interoperability are keys to market participation. Miller, supra note 5, at 351-54.
56. 15 U.S.C. § 1064(5)(D) (2006); MCCARTHY, supra note 24, § 19:92 ("This obligation distinguishes a certification mark from a trademark and creates a kind of 'compulsory licensing.'").
57. Giovannucci & Ponte, supra note 22, at 286 ("In the last decade or so, ever more awareness of the socio-economic plight of developing country fanners, increased interest in the health and safety of food, and scientific recognition that expansion of the agricultural frontier constitutes the greatest threat to global biodiversity have further popularized several agricultural sustainability initiatives. As a result, sustainability (or cause-related) standards have enjoyed a much greater recognition and a fast-growing market value."). Fair trade is concerned with developing markets and relationships between the global North and South through standards and certification. More recent efforts involve South-South trade or direct marketing by Southern producers without intermediaries such as certifiers. Murray et al., supra note 13, at 24-31;
58. see also CATHY FARNWORTH & MICHAEL GOODMAN, GROWING ETHICAL NETWORKS: THE FAIR TRADE MARKET FOR RAW AND PROCESSED AGRICULTURAL PRODUCTS 10-11 (2008), available at http://siteresources.worldbank.org/INTWDR2008/Resources/ 2795087-1191427986785/FarnworthC&GoodmanM-GrowingEthicalNetworks%5Bl%5D.pdf.
59. Charnovitz, supra note 28, at 2 ("The broad definition pursued here should be contrasted with the narrower definition of 'standard' used in the WTO Agreement on Technical Barriers to Trade (TBT). In TBT, a standard is defined as a: Document approved by a recognized body, that provides, for common and repeated use, rules, guidelines or characteristics for products or related processes and production methods, with which compliance is not mandatory. It may also include or deal exclusively with terminology, symbols, packaging, marking or labelling requirements as they apply to a product, process or production method." (emphasis added) (citing TBT Agreement, supra note 7, Annex 1, para.2)); id. at 4.
60. Radin, supra note 25, at 1126-27.
61. Lemley, supra note 5, at 1896.
62. TRIPS Agreement, supra note 21.
63. Ian Ayres & Jennifer Gerarda Brown, Privatizing Employment Protections, 49 ARIZ. L. REV. 587 (2007) (proposing a certification mark that allows employees and applicants to enforce the Employment Non-Discrimination Act, prohibiting discrimination on the basis of sexual orientation).
64. OTA REPORT, supra note 18, at 99 ("[Product] standards [are those that] embody information. By specifying the characteristics of a product, they allow for product identification, interoperability, and quality control.").
65. Id. at 100 ("Control standards are designed to address a societal hazard or problem. They generally define a range of acceptability with respect to the design, performance, and/or use of a product. Often taking the form of regulations, they range from such things as building codes to fuel economy standards.").
66. Id. ("[P]rocess standards facilitate and support socioeconomic transactions and interactions. They define roles and relationships, establish the rules for interpreting behavior, and specify the way in which a particular procedure or process is executed."). A PPM standard represents the process or method by which a product is produced. Charnovitz, supra note 28, at 6.
67. TBT Agreement, supra note 7.
68. See Lemley, supra note 5, at 1962-63.
69. Meidinger, supra note 11, at 273; see also id. at 273-76 (describing state actions ranging from procurement to incorporation of standards into public regulations).
70. OTA REPORT, supra note 18, at 6, 28,42.
71. See id. at 14.
72. U.S. OFFICE OF MGMT. & BUDGET, CIRCULAR NO. A-119 (1998), available at http://www.whitehouse. gov/omb/circulars/al 19/al 19.html.
73. Charnovitz, supra note 28, at 3.
74. See OTA REPORT, supra note 18, at 11.
75. See id. at 11-12.
76. JACQUELINE DECARLO, FAIR TRADE: A BEGINNER'S GUIDE 14 (2007) (citing MICHAEL BARRATT BROWN, FAIR TRADE: REFORM AND REALITIES IN THE INTERNATIONAL TRADING SYSTEM (1993)).
77. MICHAEL J. TREBILCOCK & ROBERT HOWSE, THE REGULATION OF INTERNATIONAL TRADE 151 (2d ed. 1999);
78. accord Charnovitz, supra note 28, at 25-26.
79. TREBILCOCK & HOWSE, supra note 59, at 151.
80. Charnovitz, supra note 28, at 25-26.
81. Roht-Arriaza, supra note 11, at 499 (emphasis added) (footnotes omitted).
82. Id. at 500 (emphasis omitted).
83. Chamovitz, supra note 28, at 23-29.
84. See id. at 10.
85. TBT Agreement, supra note 7, Annex 1.
86. Id.
87. Id. Annex 1.1, paras. 1-2 (defining the term "[tjechnical regulation" as a "[d]ocument which lays down product characteristics or their related processes and production methods, including the applicable administrative provisions, with which compliance is mandatory" (emphasis added)). The narrower definition of "[sjtandard" is a [d]ocument approved by a recognized body, that provides, for common and repeated use, rules, guidelines or characteristics for products or related processes and production methods, with which compliance is not mandatory. It may also include or deal exclusively with terminology, symbols, packaging, marking or labelling requirements as they apply to a product, process or production method. Id. Annex 1.2, para. 1 (emphasis added).
88. Id. art. 2.4;
89. see also TREBILCOCK & HOWSE, supra note 59, at 143;
90. Charnovitz, supra note 28, at 15.
91. TBT Agreement, supra note 7, art. 2.5 ("Whenever a technical regulation is prepared, adopted or applied for one of the legitimate objectives explicitly mentioned in paragraph 2, and is in accordance with relevant international standards, it shall be rebuttably presumed not to create an unnecessary obstacle to international trade.").
92. Charnovitz, supra note 28, at 10.
93. TBT Agreement, supra note 7, Annex 3B.
94. Id. art. 4.
95. ROTHERHAM, supra note 16, at 15.
96. ISEAL ALLIANCE, ISEAL CODE OF GOOD PRACTICE FOR SETTING SOCIAL AND ENVIRONMENTAL STANDARDS 4 (public version 4 2006), available at http://www.fairtrade.net/fileadmin/user-upload/content/P005-ISEAL-Code-PD4-Jan- 06.pdf. ("The ISEAL Alliance defines and codifies best practice, at the international level, for the design and implementation of social and environmental standards systems. ISEAL Alliance members are committed to meeting this best practice in order to ensure their systems are credible and accessible. The ISEAL Alliance provides a global framework for the social and environmental standards movement to coordinate, cooperate and build its capacity to deliver positive global impacts.").
97. Charnovitz, supra note 28, at 21 (citing Communication from Brazil, G/TBT/W/140 (July 28, 2000)). Steve Charnovitz further observes, The listed principles include: Transparency, Openness, Impartiality and Consensus, Effectiveness and Relevance, Coherence, and a Development Dimension. As of now, the principles are non-binding, but there have been suggestions that adherence to these principles be made a condition for recognizing a particular set of international standards in the WTO. The standardizing institutions have not questioned the audacity of the TBT Committee in propounding these principles, but there would certainly be grounds for doing so. The problem is not the substance of the principles; most of them reflect conventional wisdom on good governance. The problem is that the WTO itself does not honor these principles in its own activities. Id. (citing Decision of the Committee on Principles for the Development of International Standards, Guides and Recommendations with Relation to Articles 2, 5 and Annex 3 of the Agreement, G/TBT/9, Annex 4 (Nov. 13, 2000)).
98. Fairtrade Labelling Organization, http://www.fairtrade.net/ (last visited Feb. 21, 2009). Fairtrade Labelling Organization International (FLO) is an umbrella organization that unites 20 labelling initiatives in 21 countries and 3 producer networks in Latin America, Africa, and Asia. Other stakeholders in setting fair trade certification standards for commodities could include trade associations (including various intermediaries such as coffee roasters in the case of coffee, exporters, distributors, as well as the retailers) and consumers, as well as public regulatory agencies (e.g., the FDA on the domestic level or the FAO on the international level).
99. STARBUCKS CORP., CORPORATE SOCIAL RESPONSIBILITY, FISCAL 2007 ANNUAL REPORT: OUR COMMITMENT TO ETHICAL COFFEE SOURCING 11 (2007) [hereinafter STARBUCKS CSR REPORT].
100. Meidinger, supra note 11, at 267.
101. OTA REPORT, supra note 18, at 6.
102. Blair et al., supra note 9, at 7.
103. Id. at 8.
104. Id; see also James McGann and Mary Johnstone, The Power Shift and the NGO Credibility Crisis, INT'L J. NOT-FOR- PROFIT L., Jan. 2006, at 65, 67 ("The Economist estimates that the number of international non-governmental organizations rose from 6,000 in 1990 to 26,000 in 1996. According to the 2002 UNDP Human Development Report, nearly one-fifth of the world's thirty-seven thousand INGOs (international nongovernmental organizations) were formed in the 1990s.").
105. See generally Blair et al., supra note 9, at 6 (also noting trend toward social performance certification); American National Standards Institute, http://www.ansi.org/ (last visited Feb. 21,2009).
106. International Organization for Standardization, ISO Social Responsibility, http://isotc.iso.org/livelink/livelink/fetch/2000/2122/830949/ 3934883/3935096/home.html7nodeid=4451259&vernum=0 (last visited Feb. 21, 2009).
107. Social Accountability International, Overview of SA8000, www.sa-intl.org/index.cfm?fuseaction=Page.viewPage&pageId=473 (last visited Feb. 21, 2009). According to its website, Social Accountability International (SAI) "works with companies, consumer groups, non-governmental organizations (NGOs), workers and trade unions, local governments-as well as a network of agencies accredited for SA8000 auditing, to help ensure that workers of the world are treated according to basic human rights principles." Social Accountability International, http://www.sa-intl.org (last visited Feb. 21, 2009);
108. see also Fortin, supra note 3, at 51 ("[TJhere is no single set of internationally recognized standards for ethical trade ⋯. some of its components-notably labour standards-have been elaborated by non-governmental international organizations ⋯ [such as] the Social Accountability 8000 (or SA8000) Standards and the Ethical Trading Initiative (ETI) Base Code and Principles of Implementation.");
109. Blair et al., supra note 9, at 9.
110. OTA REPORT, supra note 18, at 20.
111. See G.A. Res. 55/56, U.N. Doc. A/RES/55/56 (Jan. 29, 2001).
112. Footer, supra note 12, at 17-18 (discussing the 2003 WTO waiver covering conflict diamonds).
113. Fair Trade Labelling Organizations International, http://www. transfairusa.org/content/about/aboutus.php (last visited Feb. 21, 2009).
114. Fairtrade Labelling Organizations, supra note 77.
115. Stephanie Barrentios & Sally Smith, Mainstreaming Fair Trade in Global Production Networks, in FAIR TRADE, supra note 13, at 118-19; Laura T. Raynolds & Michael A. Long, Fair/Alternative Trade: Historical and Empirical Dimensions, FAIR TRADE, supra note 13, at 15, 19 (referencing INT'L ORG. FOR STANDARDIZATION, ISO/IEC GUIDE 65: 1996(1996)).
116. Blair et al., supra note 9, at 10.
117. Id. at 5 ("Moreover, there appears to be only one significant professional organization that offers any standardization and assurance of the assurance professionals themselves. This is the International Register of Certificated Auditors (IRCA), a UK organization based in London that was founded in 1984 as part of a UK government initiative to establish and certify quality management standards.").
118. Meidinger, supra note 11, at 269; Elizabeth Guttenstein, ISEAL Alliance, Private Standards and their Implications for Market Access, Development, WTO/Trade Rule, Presentation at the UNCTAD-SPS Committee Information Session (June 2007), available at http://r0.unctad.org/trade- env/testl/meetings/wtol/ISEAL%20Guttensteino/o20revised.pdf.
119. AM. NAT'L STANDARDS INST., NATIONAL CONFORMITY ASSESSMENT PRINCIPLES FOR THE UNITED STATES 5 (2002), available at http://publicaa.ansi.org/sites/apdl/Documents/News%20and%20Publications/ Brochures/NCAP%20second%20edition.pdf;
120. see also id. at 8 n.5 ("Where relevant, any certification mark, number or other identification that will be required on the product's label or on the product's manual/accompanying documentation/packaging/carton should be provided to the applicant at the time of application rather than after completion of the assessment. Approval for its use on the product will of course be dependent on the applicant's successful fulfillment of all conformity assessment requirements. If the certification mark, number or other identification is only provided after completion of the assessment, the applicant cannot begin to prepare for product distribution. This will delay time-to-market for the product. If, on the other hand, the mark, number or other identification is provided up-front, the applicant can proceed with preparation for distribution if the applicant is willing to assume the risks associated with cancellation of packaging in the event that the product fails the assessment.").
121. Meidinger, supra note 11, at 260-61.
122. Id. at 267 (noting that certification programs do not seem to have focused very carefully on this risk thus far, but rather have dealt with it by primarily relying on professionalism in accreditation standards and, in some cases, random external auditing);
123. Roht-Arriaza, supra note 11, at 534 (pointing to evidence of massive industry violations of a voluntary code of conduct with respect to the use of pesticides);
124. Blair et al., supra note 9, at 5 ("[The assurance business] is a business that is rife with the potential for abuse.");
125. see also Michael Moss & Andrew Martin, Food Problems Elude Private Inspectors, N.Y. TIMES, Mar. 6, 2009, at Al (noting that the Peanut Corporation of America paid for private audits of its facilities).
126. Lewis & Einhorn, supra note 23 (describing how short-term interests of credit rating agencies led to dubious ratings, and recommending reforms so that issuers do not pay for ratings).
127. Giovannucci & Ponte, supra note 22, at 291-92 (listing issues ranging from inspections that may take place only once to the employment of untrained college students to verify standards).
128. Kim Severson & Andrew Martin, It's Organic, but Does That Mean It's Safer?, N.Y. TIMES, Mar. 4, 2009, at Dl;
129. see also Blair et al., supra note 9, at 9.
130. See, e.g., Carbon Emissions Offset, http://www.ecobusinesslinks. com/carbon-offset-wind-credits-carbon-reduction.htm (last visited Feb. 21, 2009). My research assistant's Internet research into the carbon credits listed in this handy table ended up in cold trails with respect to how they are certified to comply with standards. This is not to cast aspersions on the certifications made by the firms; rather, the point is that consumers have no way of verifying the information.
131. Meléndez-Ortiz, supra note 10, at 84 ("New Zealand lamb exporters cannot be the authority with the final say on whether their own meat is more energy-efficient than British lamb, even with shipping included.").
132. Graeme B. Dinwoodie & Mark D. Janis, Confusion over Use: Contextualism in Trademark Law, 92 IOWA L. REV. 1597, 1604 (2007) ("Trademark law has become a leading instrument for shaping the forces by which consumer understanding is developed. A proactive view of trademark lawmaking embraces the proposition that trademark law should be used to influence the norms that govern consumers' shopping habits. In contrast, a reactive view relegates trademark law to the role of discerning and protecting extant consumer understanding.").
133. The International Trade Centre (ITC) and the UN Conference on Trade and Development (UNCTAD) have been active in promoting ethical trade via standards. WEDF Notes, supra note 19.
134. See generally Deven R. Desai & Sandra L. Rierson, Confronting the Genericism Conundrum, 28 CARDOZO L. REV. 1789 (2007).
135. 15U.S.C. § 1114(1 )(a) (2006).
136. Blair et al., supra note 9, at 16 (emphasis added) (citing Peter Gibbon & Stefano Ponte, Quality Standards, Conventions and the Governance of Global Value Chains, 34 ECON.& SOC'Y 1,5 (2005)).
137. See, e.g., The Body Shop, Against Animal Testing, http://www.thebodyshop.com/-en/-ww/values-campaigns/against-animal-testing.aspx? (last visited Feb. 13, 2009) (owning a registered mark in its business name and having a wellhoned reputation for sustainable business practices); see also Ben & Jerry's Ice Cream, 2007 Social & Environmental Assessment, Milk & Cream, http://www.benjerry.com/company/sear/2007/sear07- 4.1.cfm?mid=menu4 (last visited Mar. 21, 2009).
138. Both collective marks and certification marks were added to the federal trademark statute in 1938 in order to comply with obligations under the Paris Convention for the Protection of Industrial Property Article Ibis, Mar. 20, 1883, 21 U.S.T. 1583, 828 U.N.T.S. 305 [hereinafter Paris Convention], as revised at Brussels on December 14, 1900, at Washington on June 2, 1911, at The Hague on November 6, 1925, at London on June 2, 1934, at Lisbon on October 31,1958, and at Stockholm on July 14,1967, and as amended on September 28, 1979). See Hearing on S. 2679 Before the J. Comm. on Patents, 68th Cong. 153-54 (1925) (statement of Bernard A. Kosicki, Bureau of Foreign and Domestic Commerce, Department of Commerce), reprinted in 3 TRADEMARK PROTECTION AND PRACTICE: SECTION BY SECTION LEGISLATIVE HISTORY OF THE LANHAM ACT § 4, at 4-5 (Jerome Gilson ed., 1988) [hereinafter TRADEMARK PROTECTION AND PRACTICE] ("That would also, I believe, meet with our international obligations, in article 7 1/2 [sic] of the Paris convention of 1883, which provides for the registration of association trade-marks. So far we have not given effect to that measure because no machinery was available.").
139. 15 U.S.C. § 1064.
140. Transfair 2005 marketing figures from 2005 Federal Tax Statements, 41-1848081 (showing $55,628 in advertising and $54,498 in promotional and PR expense) for Form 990, Part II, Line 43.
141. The Ethiopian Coffee Network, for example decided to use a trademark licensing strategy rather than a CM approach to promoting Ethiopian coffees in Northern markets. See Ethiopian Coffee Network, About the Trademark and Licensing Initiative, http://www.ethiopiancoffeenetwork.com/about6.shtml (last visited Feb. 21, 2009) ("Ethiopia did consider another avenue, Certification Marks. CMs indicate and assure the coffee buyer of the origin of a specific sack of coffee beans. Yet this legal tool, while valuable, would not confer to Ethiopia legally binding rights and powers with respect to a relationship with the companies that trade and retail its coffees. With trademarks secured, the Ethiopian coffee sector can achieve more equitable leverage in this process of dialogue and planning. [Trademarks] give Ethiopian coffee growers and exporters rights and therefore opportunities they did not have before.");
142. see also Posting of Douglas Holt to Coffee Politics, http://poorfarmer.blogspot.com/ (Nov. 17, 2006).
143. But see Justin Hughes, Coffee and Chocolate: Helping Developing Country Farmers Through Geographical Indications (2009) (unpublished manuscript, on file with author) (divining contradictory reasons for Ethiopia's decision).
144. Giovannucci & Ponte, supra note 22, at 289-90.
145. Meidinger, supra note 11, at 270 ("[A]s many as [sixty] governments have promulgated their own, often less stringent standards [than the International Federation of Organic Agriculture Movement's]. Moreover, the United States, Japan, and to a lesser extent Europe, appear to have developed their organic agriculture regulations with relatively little reference or deference either to the IFOAM standards or to each other." (citations omitted)).
146. INT'L TASK FORCE ON HARMONIZATION & EQUIVALENCE IN ORGANIC AGRIC, COMMUNIQUE FROM THE 8TH INTERNATIONAL TASKFORCE MEETING (2008).
147. The Standards Development Organization Advancement Act of 2004 provides for a number of incentives and safe harbors for SSOs, including the evaluation of their conduct under an antitrust rule of reason. 15 U.S.C. § 4302 (2006).
148. Giovannucci & Ponte, supra note 22, at 289 ("One of the clear signals emerging from market surveys is that retailers in both the US and Europe would like to see simpler messages for consumers. They would also prefer single sustainability labels that cover both social and environmental aspects. [Moreover, s]ustainable coffee initiatives have limited systems of monitoring and evaluation. Often, they cannot consistently and accurately document levels and distribution of benefits that accrue to various actors in the value chain.");
149. accord KAREN ELLIS & MICHAEL WARNER, OVERSEAS DEV. INST., IS THE TIME RIPE FOR A GOOD FOR DEVELOPMENT PRODUCT LABEL? 1 (2007), available at http://www.odi.org.uk/resources/odi-publications/opinions/88-karen-ellis- michael-warner-good-for-development.pdf
150. 15 U.S.C. § 1127 (emphasis added).
151. Teny E. Holtzman, Tips from the Trademark Examining Operation: Certification Marks: An Overview, 81 TRADEMARK REP. 180, 183 (1991) (emphasis added).
152. In re Monsanto Co., 201 U.S.P.Q. (BNA) 864, 870 (T.T.A.B. 1978) (emphasis omitted);
153. see also 15 U.S.C. § 1064(5)(D).
154. 15 U.S.C. § 1064(5)(D); see also MCCARTHY, supra note 24, § 19:92 ("This obligation distinguishes a certification mark from a trademark and creates a kind of compulsory licensing"); Holtzman, supra note 120, at 183.
155. J. Thomas McCarthy gives an example of CMs functioning as geographical indications (i.e., Parma ham), whereby the specific process and standards for certification remain quite vague by the very terms of the U.S. registration. MCCARTHY, supra note 24, § 19:91, n.16.
156. U.S. PATENT & TRADEMARK OFFICE, USPTO TRADEMARK MANUAL OF EXAMINING PROCEDURE ch. 1306.06(g)(ii)(5th ed. 2007), available at, http://tess2.uspto.gov/tmdb/tmep/[hereinafter USPTO TME] ("The applicant (certifier) must submit a copy of the standards established to determine whether others may use the certification mark on their goods and/or in connection with their services." (citing 37 C.F.R. § 2.45 (2007))). For an intent-to-use application, under section l(b) of the Act, see 15 U.S.C. § 1051(b). The standards are submitted with the amendment to allege use or the statement of use. See 31 C.F.R. § 2.45(b). The standards do not have to be original with the applicant. They may be standards established by another party, "such as specifications promulgated by a government agency, or standards developed through research of a private research organization." USPTO TME, supra, § 1306.04.
157. Alan Oskowski, Certification Marks: Should the Federal Government Regulate Standards Protecting the Consumer? (2008) (unpublished manuscript, on file with author).
158. See, e.g, State of Idaho Potato Comm'n, U.S. Trademark Serial No. 77335656 (filing date Nov. 21,2007).
159. See U.S. Green Bldg. Council, U.S. Trademark Serial No. 77199331 (filing date June 6, 2007) ("The certification mark, as intended to be used by authorized persons, is intended to certify that an individual or organization has met the educational, experience, and ethical standards adopted by the U.S. Green Building Council.").
160. 15 U.S.C. § 1064 (emphasis added).
161. Id. § 1064(5)(A); see also Justin Hughes, Champagne, Feta, and Bourbon: The Spirited Debate About Geographical Indications, 58 HASTINGS L.J. 299, 310 (2006) (discussing common-law rights in regional certification marks).
162. 15 U.S.C. § 1064 ("[T]he Federal Trade Commission may apply to cancel on the grounds specified in paragraphs (3) and (5) of this section ⋯.").
163. MCCARTHY, supra note 24, § 19:91 n.7 ("[I]n an end to the F.T.C.'s eight-year attempt to lay down rules for the setting of private product standards and use of certification marks, the Commission voted in 1985 to terminate its standards and certification rulemaking proceeding. Henceforth, the F.T.C. said that it would proceed in such matters only on a case-by-case basis.").
164. Halicki v. United Artists Comm'ns Inc., 812 F.2d 1213, 1214 (9th Cir. 1987) (finding that only competitors have standing to allege unfair competition under section 43(a) of the Lanham Act).
165. U.S. Patent and Trademark Office, Geographical Indications, Protection, www.uspto.gov/web/offices/dcom/olia/globalip/gLprotection.htrn (last visited Feb. 21, 2009) ("With respect to protection of geographical indication certification marks, affected parties can oppose registration or seek to cancel registrations, all within the existing trademark regime in the United States. So, if a party believes that the certifier is not following its own standards or is discriminating by denying use of the mark to a qualified party, that party can file an opposition or cancellation proceeding against the certification mark or an action in federal court.").
166. Midwest Plastic Fabricators, Inc. v. Underwriters Labs., Inc., 906 F.2d 1568, 1571 (Fed. Cir. 1990).
167. Id. at 1569-70.
168. See Holtzman, supra note 120, at 186.
169. Midwest Plastic Fabricators, 9061='.2d at 1572.
170. Id. at 1573.
171. See In re Monsanto, 201 U.S.P.Q. (BNA) 864, 870 (T.T.A.B. 1978) (denying registration of a mark as a certification mark even though it performed a certification-mark function because a similar mark was registered as a trademark).
172. MCCARTHY, supra note 24, § 19.94.
173. As stated by the Trademark Trial and Appeal Board in In re Monsanto, the owner of a certification mark cannot use said mark in connection with goods and services of its manufacture or design to certify their quality or accuracy-the objectivity of a certifier as reflected by the certification mark would obviously be lacking and therefore the use of the mark would be misleading. 201 U.S.P.Q. (BNA) 864.
174. In re Fla. Citrus Comm'n, 160 U.S.P.Q. (BNA) 495, 498-99 (T.T.A.B. 1968).
175. In re Monstanto, 201 U.S.P.Q. (BNA) at 869.
176. Telephone Interview with Deven Desai, Assistant Professor, Thomas Jefferson Sch. of Law (Sept. 22, 2008).
177. TRADEMARK PROTECTION AND PRACTICE, supra note 110, at 14-81 (statement of Sidney A. Diamond, Assistant Commissioner for Trademarks, Patent and Trademark Office, U.S. Department of Commerce) ("[T]he standing of consumers to petition for cancellation of generic marks is ⋯ dubious. Obviously, too, litigating a trademark case can be enormously expensive, and each consumer has relatively little financial stake in cancellation. Without public counsel to represent the interest of consumers and potential competitors, their voice in generic trademark litigation would be faint indeed.").
178. The doctrine of CMs gives consumers another avenue of indirect impact. The question of whether the mark should be registered as a CM depends on whether the consumer views it as a certification as opposed to conveying some noncertified characteristic of the good or service. MCCARTHY, supra note 24, § 19:93.
179. Institut Nat'l Des Appellations d'Origine v. Brown-Forman Corp., 47 U.S.P.Q.2d (BNA) 1875, 1885-89 (T.T.A.B. 1998).
180. MCCARTHY, supra note 24, § 19:91 (citing Institut Nat'l, 47 U.S.P.Q.2d (BNA) at 1885).
181. 15 U.S.C. §§ 1052(e)(2), 1054 (2006).
182. USPTO TME, supra note 124, § 1306.01(b).
183. Barton Beebe, The Semiotic Analysis of Trademark Law, 51 UCLA L. REV. 621, 643 (2004).
184. See, e.g., Tomer Broude, Taking "Trade and Culture" Seriously: Geographical Indications and Cultural Protection in WTO Law, 26 U. PA. J. INT'L ECON. L. 623 (2005);
185. Hughes, supra note 129.
186. 15 U.S.C. § 1127 (providing the definition of CM).
187. As McCarthy puts it, "[w]ith a growing world market in foodstuffs, accurate identification of the geographic origin of food and beverages has become of increasing importance." MCCARTHY, supra note 24, § 14:1.
188. See, e.g., Hughes, supra note 129, at 346 (noting that France's share of the global wine market has decreased in inverse proportion to the increase of wine GIs).
189. See TRIPS Agreement, supra note 21, art. 22.
190. Id. art. 22, para. 1 (emphasis added).
191. Id. ait. 22, para. 2(a)-(b). The TRIPS Agreement also provides heightened protection for wines and spirits. Specifically, under Article 23, geographic indications may not be used for wines and spirits even if the public would not be deceived. See id. art. 23, para. 1.
192. See Paris Convention, supra note 110, art. lObis, para. (3)3 (emphasis added);
193. see also Hughes, supra note 129, at 317.
194. Hughes, supra note 129, at 337, 346.
195. Id. at 337.
196. See Giovannucci & Ponte, supra note 22, at 289.
197. Id.
198. Hughes, supra note 129, at 370 ("The oldest post-World War II development of reputational capital for a developing world GI is surely the forty year campaign by the National Federation of Coffee Growers of Colombia to convince North American coffee drinkers of the superiority of their country's coffee. Their success is measured not just by 95% of American coffee drinkers being aware that Colombia grows coffee, but also by the fact that the trademark avatar of their efforts, JUAN VALDEZ[,] ⋯. is a household name for 80% of Americans.")
199. FRIDELL, supra note 15, at 94.
200. Margaret Chon, Intellectual Property "from Below": Copyright and Capability for Education, 40 U.C. DAVIS L. REV. 803 (2007) [hereinafter Chon, Copyright]; Margaret Chon, A Substantive Equality Principle in International Intellectual Property Norm-Setting, in INTELLECTUAL PROPERTY, TRADE AND DEVELOPMENT: STRATEGIES TO OPTIMIZE ECONOMIC DEVELOPMENT IN A TRIPS PLUS ERA 475,479 (Daniel J. Gervais ed., 2007).
201. See generally FAIR TRADE, supra note 13;
202. FRIDELL, supra note 15.
203. Chile and some South Pacific islands are coffee importers; otherwise the vast majority of coffee importers are high-income countries. See Coffee Imported per Country in 2005, http://en.wikipedia.org/wiki/Image:Coffee- Imported-per-Country-in-2005%28US DA%29v2.png (last visited Feb. 18, 2009).
204. Douglas L. Murray & Laura T. Raynolds, Globalization and Its Antinomies: Negotiating a Fair Trade Movement, in FAIR TRADE, supra note 13, at 9.
205. Id. at 86.
206. Id. at 139.
207. FAIRTRADE FOUND., THE ARABICA COFFEE MARKET 1989-2007: COMPARISON OF FAIRTRADE AND NEW YORK PRICES (n.d.), http://www.fairtrade.net/ fileadmin/user-upload/content/Arabica-Price-Chart-89-07-01.pdf.
208. FAIRTRADE LABELING ORGS. INT'L, FAIRTRADE MINIMUM PRICE AND FAIRTRADE PREMIUM TABLE 5-6 (2009), available at http://www.fairtrade.net/fileadmin/user-upload/content/Feb09-Fairtrade-Minimum- Price-and-Premium-Table-EN.pdf.
209. Rainforest Alliance, Substance Agriculture, http://www.rainforest- alliance.org/agriculture.cfm?id=coffee (last visited Feb. 18, 2009).
210. See, e.g., Catholic Relief Services, What's the Deal with the Seals?, http://www.crsfairtrade.org/coffee/certified.cfm (last visited Feb. 27, 2009).
211. Equal Exchange, http://www.equalexchange.com (last visited Feb. 18, 2009).
212. Rainforest Alliance, http://www.rainforest-alliance.org/ (last visited Feb. 18, 2009).
213. Utz-Certified, http://www.utzcertified.org/ (last visited Feb. 18, 2009).
214. Counter Culture Direct Trade is an outgrowth of Fairtrade and, unlike the direct trade model, does rely on certifiers. It differentiates itself from Fairtrade by offering a much higher premium to farmers.
215. World Fair Trade Organization, http://www.wfto.com (last visited Feb. 18, 2009).
216. Fair Trade Federation, http://www.fairtradefederation.org/ (last visited Feb. 18, 2009).
217. FINE is an informal organization of the four main international trade networks (Fairtrade Labelling Organizations International, International Fair Trade Association, Network of European Worldshops, and European Fair Trade Association).
218. The Fair Trade Federation (FTF) label signifies "membership in the Fair Trade Federation, an organization of wholesalers and retailers committed to uphold the Fair Trade principles ⋯ in all their trading relationships." Catholic Relief Services, supra note 175.
219. See, e.g., Pura Vida Coffee, http://www.puravidacoffee.com/ (last visited Feb. 18, 2009).
220. See, e.g., STARBUCKS CSR REPORT, supra note 78.
221. See, e.g., Madre Monte and Coffee, http://www.madremonte.com/ Default.aspx (last visited Feb. 18,2004).
222. Byers et al., supra note 14, at 7 (discussing double certification).
223. Id. at 3; see, e.g., Final Meeting of the UNCTAD-FAO-IFOAM International Task Force on Harmonization and Equivalence in Organic Agriculture (ITF), Geneva, Switzerland, Oct. 6-7, 2008 (ITF Agreements); U.S. Department of Agriculture, National Organic Program, http://www.ams.usda.gov/AMSvl .0/ams.fetchTemplateData.do?template=TemplateA&navID= NationalOrganicProgram&leftNav=NationalOrganicProgram&page= NOPNationalOrganicProgramHome&acct=nop (last visited Feb. 18, 2009) ("The Department of Agriculture accredits the certifying agents (foreign and domestic) who inspect organic production and handling operations to certify that they meet USDA standards.")
224. FARNWORTH & GOODMAN, supra note 40, at 10-11 ("In the UK the Ethical Trading Initiative's Base Code was developed by a consortium of companies, trades unions and NGOs anxious to improve working conditions and human rights in the workplace. Although codes like the ETI Base Code focus chiefly on organized labor-and hence on workplace practices rather than trading standards-some actors, including several supermarkets, are embracing codes of conduct.").
225. Interview with Dub Hay (Jan. 5, 2006) (estimating around one percent of coffee sold by Starbucks is FLO-certified and sold under the Starbucks Cafe Estima brand and the premium paid to Transfair as ten cents per pound).
226. FARNWORTH & GOODMAN, supra note 40, at 11.
227. TRANSFAIR U.S.A., 2005 ANNUAL REPORT (2005), available at http://www.transfairusa.org/content/Downloads/ AnnualReport2005.pdf.
228. See Stephanie Barrientos & Sally Smith, Mainstreaming Fair Trade in Global Product Networks: Own Brand Fruit and Chocolate in UK Supermarkets, in FAIR TRADE, supra note 13, at 103, 118-19.
229. FLO International, FLO's Main Tasks, http://www.fairtrade.net/tasks.html (last visited Feb. 20, 2009).
230. FLO International, Standards http://www.fairtrade.net/standards.html (last visited Feb. 20, 2009).
231. In the UK, "Fairtrade" is not a certification mark; it is registered as a trademark. WEDF Notes, supra note 19 (information from Harriet Lamb).
232. See Laura T. Raynolds & Michael A. Long, Fair/Alternative Trade: Historical and Empirical Dimensions, in FAIR TRADE supra note 13, at 19.
233. FLO International, The Fairtrade Certification Mark, http://www. fairtrade.net/certification-mark.html (last visited Feb. 20, 2009).
234. MURRAY ET AL., supra note 13, at 12 (describing two cooperatives that had been decertified);
235. WEDF Notes, supra note 19 (estimating that ten percent of certifications are not recertified).
236. See Byers et al., supra note 14, at 3.
237. See id. at 2.
238. See, e.g., Counter Culture Coffee, Counter Culture Direct Trade, http://www.counterculturecoffee.com/index.php?option=com-content&task= view&id=594&Itemid=88 (last visited Feb. 20, 2009) (This standard excludes large numbers of farmers, and has led to the formation of "Counter Culture Direct Trade." This latter organization is a licensee of Transfair USA but also independently certifies farmers that do not meet the coop membership requirement, and sets minimum prices that exceeds the fair trade certified minimum by nineteen percent.).
239. See FARNWORTH & GOODMAN, supra note 40, at 10.
240. Ethiopian Coffee Network, About the Trademark and Licensing Initiative, http://www.ethiopiancoffeenetwork.com/about.shtml (last visited Mar. 25, 2009).
241. See MURRAY ET AL., supra note 13, at 24.
242. My very able and motivated research assistants spent many hours discerning the differences among coffee standards, based on publicly available information on the Internet.
243. Ruth W. Grant & Robert O. Keohane, Accountability and Abuses of Power in World Politics, 99 AM. POL. SCI. REV. 29 (2005).
244. OTA REPORT, supra note 18, at 18 (emphasis omitted); see also id. ("Due process issues are inherent in standardization. Safeguards must be built into the process, because manufacturers and users can use standards to set prices and constrain trade. In a pluralistic society such as the United States, competition and countervailing forces provide such safeguards. It is assumed that no one party can dominate the standards setting process because it is transparent and everyone can participate.").
245. Meidinger, supra note 11, at 284.
246. Id. at 278.
247. Id. at 261 (alliances centered around the Forest Stewardship Council (FSC) versus the Programme for the Endorsement of Forest Certification);
248. see also Misty L. Archambault, Making the Brand, Using Brand Management to Encourage Market Acceptance of Forestry Certification, 81 N.Y.U. L. REV. 1400, 1408 (2006) (explaining differences between FSC and the Sustainable Forestry Initiative (SFI)). FSC is a certification promulgated by the NGO sector as opposed to SFI being pushed by trade associations. See id.
249. TREBILCOCK & HOWSE, supra note 59, at 228-29 (citing ORG. FOR ECON. COOPERATION & DEV., OECD REPORT ON REGULATORY REFORM: SYNTHESIS (1997), available at http://www.oecd.org/dataoecd/17/25/2391768.pdf).
250. Charnovitz, supra note 26, at 13.
251. ROTHERHAM, supra note 16, at 15, 18.
252. See Margaret Chon, Intellectual Property and the Development Divide, 27 CARDOZO L. REV. 2813, 2833-34 (2006).
253. Chon, Copyright, supra note 166.
254. Tom Rotherham suggests a right to information. ROTHERHAM, supra note 16, at 12-14. Leveraging information technology and disclosure as a quid pro quo for protection is an alternative to address the same question.
255. 15 U.S.C. § 1064(3), (5) (2006).
256. Jordan S. Weinstein, Inter Partes Cases II, 98 TRADEMARK REP. 22 (2008) (discussing general unwillingness to cancel marks in a case about control over the CM "Darjeeling," Tea Board of India v. Republic of Tea, Inc., 80 U.S.P.Q.2d (BNA) 1881 (T.T.A.B. Aug. 23, 2006)).
257. The rise of NGOs makes this plausible. As stated earlier, the legislative history regarding "any person" suggests that the statute could be read broadly. See generally TRADEMARK PROTECTION AND PRACTICE, supra note 110.
258. 35 U.S.C. § 292 (2000); cf. Bookshire Bros. Holding, Inc. v. Total Containment, No. 04-1150, 2006 WL 1896065, at *8 (W.D. La. July 7, 2006) (finding no cause of action based on promissory estoppel against the certification mark holder and holding that "[t]he application of a certification mark to a particular product constitutes a declaration of the manufacturer-not a representation of the registrant of the certification mark").
259. Sec 15 U.S.C. § 1117(d).
260. Paris Convention, supra note 110, art. Ibis, para. (2).
261. Id. art. 10bis, para. (3)3.
262. General Motors Corp. v. Lopez de Arriortua, 948 F. Supp. 684, 689 (E.D. Mich. 1996) (endorsing a broad construction of unfair competition within section 44 pursuant to Paris Convention article 10bis);
263. cf. Vanity Fair Mills, Inc. v. T. Eaton Co., 234 F.2d 633 (2d Cir. 1956) (rejecting a broad construction).
264. Outside of these proposed changes to the Lanham Act, other means such as distribution of knowledge to consumers and to small developing country producers through information technology are important. One of these initiatives is the Committee on Sustainability Assessment (COSA), which is a joint project of the Sustainable Coffee Partnership and the International Trade Centre. See The Committee on Sustainability Assessment (COSA), http://www.iisd.org/ standards/cosa.asp (last visited Feb. 20, 2009).
265. Margaret Chon, Global Intellectual Property Pluralism and the Domains of Development, in WORKING WITHIN THE BOUNDARIES OF INTELLECTUAL PROPERTY (Rochelle Dreyfuss, Harry First & Diane Zimmerman eds., forthcoming 2009).
266. Laurence R. Heifer, Regime Shifting: The TRIPs Agreement and New Dynamics of International Intellectual Property Lawmaking, 29 YALE J. INT'L L. 1, 42 n.186 (2004);
267. cf. JOHN BRAITHWAITE & PETER DRAHOS, GLOBAL BUSINESS REGULATION 564, 571 (2000) (defining forum-shifting and suggesting that it is a game that only the powerful states can play).