Like Superman’s distinctive “S,” USDA’s Organic Seal now has ® to signify its superpowers. The US Department of Agriculture recently announced that it registered the USDA Organic Seal with the US Patent and Trademark Office as a certification mark. (The mark was actually registered in August 2021.) This move by USDA is a terrific example of what I love most about what I do as a lawyer: using all the legal tools available to promote and protect better food and agriculture.
USDA already has powers under the Organic Foods Production Act to punish those who use the organic label in violation of the National Organic Program standards with civil penalties up to $10,000 and by barring violators from obtaining organic certification for up to 5 years. By leveraging trademark law, USDA now can pursue those who wrongly use the USDA Organic Seal under the Lanham Act to obtain more powerful remedies, including injunctive relief, seizure of goods bearing counterfeit marks, treble damages or statutory damages up to $2 million per type of goods using counterfeit marks, and litigation costs. In addition, registration of the organic seal on the Principal Register allows for criminal prosecution under the Trademark Counterfeiting Act of persons who intentionally counterfeit the mark. For a first offense, the potential fines are up to $2 million for an individual and up to $5 million for an entity and up to 10 years in jail. Moreover, registration of the mark allows Customs and Border Patrol to block entry of goods that wrongly use the organic seal.
And USDA gained all these powers using existing federal law without having to go to Congress. That’s pretty amazing, if you ask me.
What’s even more amazing is that all these rights are available to anyone who registers their mark! Just like USDA has used trademark law to strengthen the integrity of the organic program, you also can use trademark law to protect your distinct brand, certification program, or membership organization. Give us a call to find out how we can help secure your trademark superpowers.