Unlike ordinary trademarks, which indicate the commercial source of a product, certification marks communicate to the consumer that the products to which they are affixed meet certain manufacturing or quality standards.
One question that flows from this quality communication function is whether a manufacturer that affixes a certification mark to a product, by doing so, expressly warrants that the product meets the standards signaled by the certification mark.
This legal issue has begun to split the courts in the context of the Energy Star certification program for energy efficient appliances. In the last year or so, an Ohio federal court dismissed a plaintiff’s express warranty claim based on affixation of the ENERGY STAR logo to a washing machine while a California federal court allowed a similar claim involving refrigerators to move forward.
The defendant was Whirlpool in both cases. In the Ohio case, Savett v Whirlpool Corporation, the defendant moved to dismiss all of plaintiff’s claims, including a breach of express warranty.
The court granted Whirlpool’s motion on that claim because it found the ENERGY STAR logo does not in itself affirm any fact or promise:
[T]he Court finds that plaintiff fails to allege the existence of an express warranty because use of the ENERGY STAR logo is not an “affirmation of fact or promise” as alleged in this case . . . . the logo itself contains no assertion of fact or promise. Unlike traditional express warranties where unambiguous promises or factual assertions are made, which are clearly understood on their own footing, any meaning conveyed by the logo requires independent knowledge.
The court also noted the lack of any precedent “in which a logo has . . . been held to constitute an express warranty.”
Contrast that with Dei Rossi v. Whirlpool Corporation, decided by the U.S. District Court for the Eastern District of California. This case, discussed in a recent post, came out the other way.
The California court denied Whirlpool’s motion to dismiss the express warranty claim, holding that it was satisfied by affixation of the ENERGY STAR certification mark to the refrigerators. This act by Whirlpool conferred a specific and express warranty because it communicated that the products met the Energy Star requirements:
Although Defendant alleges that this logo does not confer a specific and express warranty, Defendant does not provide any reason for affixing this logo to the product other than to signify that the product meets the Energy Star specifications. Simply put, the Court cannot fathom any other reason for affixing the logo in such a manner. . . if Defendant’s intention was simply to signify that the product was energy efficient, it could have done so without affixing the Energy Star certification logo. Thus, the Court finds that affixing this logo to the product satisfies the definition of an express warranty . . .
The court further found that the Plaintiffs adequately pleaded the exact terms of the warranty because the complaint noted that the Energy Star certification required the refrigerators to be at least 20% more efficient than minimum standard models.
Which is the better answer to this legal conundrum? We may find some guidance by attempting to reconcile the conflicting results in these two cases.
It should be noted initially that we can’t reconcile these decisions based on any differences in the express warranty statutes in Ohio and California; the salient provision in each state is identical:
Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.
One key factual difference is that the Ohio plaintiff apparently did not see the ENERGY STAR logo on the product or understand its meaning. The Ohio court noted this in footnote 8 of its decision, stating it is notable that “plaintiff does not allege that he saw or understood any purported meaning of the logo.”
The California court did in fact distinguish its decision, at least in part, on this basis:
[U]nlike the plaintiff in Savett, in the instant case Plaintiffs have alleged that they independently understood the meaning of the logo and relied on it in deciding to purchase the products.
Ultimately, however, where a court comes out on this issue seems to depend on whether it attaches more importance to the motive of the manufacturer or the motive of the consumer. That is, the California court found the manufacturer’s intention in affixing the ENERGY STAR logo to the product was to communicate that it meets the Energy Star specifications.
The Ohio court, by contrast, seemed swayed by the knowledge and purpose of the consumer, noting that “any meaning conveyed by the logo requires independent knowledge,” which the plaintiff in the suit notably lacked.
To be sure, there are a number of other causes of action consumers can bring against manufacturers that don’t satisfy green certification standards as advertised. Nevertheless, I’m sure we’ll see more case law on this issue as green certification marks continue to proliferate and influence the purchasing decisions of environmentally conscious consumers.
Eric Lane is a patent attorney at McKenna Long & Aldridge LLP in San Diego and the author of Green Patent Blog. Mr. Lane can be reached at elane@mckennalong.com
