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On December 20, 2022, the U.S. Department of Agriculture (USDA) Agriculture Marketing Service (AMS) announced that it had registered the “USDA Organic” seal with the U.S. Patent and Trademark Office (USPTO). The USDA’s organic seal is already statutorily protected by the Organic Foods Protection Act (OFPA), and only operations that are certified organic by the USDA can use the USDA’s organic seal. Registering the seal with the USPTO, however, gives the USDA even greater authority to penalize those who wrongfully label their products as “USDA Organic.” It works in conjunction with the USDA’s authority under the OFPA to provide the USDA with an additional enforcement tool to try to clamp down on fraud in the organic market.
USDA’s Enforcement Powers
Under the authority given to the USDA in the OFPA, the agency can enforce that products that are labelled as “organic” or which bear the “USDA Organic” seal were grown and processed in accordance with the standards issued by the USDA’s Natural and Organic Program (NOP), and that the organic seal is printed and displayed properly. The consequences of using the official USDA organic seal or labeling your food or wellness products as organic when you know they do not meet the USDA and NOP requirements are severe. The “penalty for knowingly labeling or selling a product as organic except in accordance with the [OFPA] … has a maximum of $20,130. (7 CFR 3.91(b)(1)(xxxvi)). Now that the seal is a registered trademark, the USDA has additional intellectual property rights to further restrict the misuse of the mark.
As the trademark owner, USDA can seek additional civil remedies under the Lanham Act such as injunctive relief (like pulling products that violate the USDA’s trademark rights) and statutory monetary damages for any and all violations. In addition, businesses trafficking in counterfeit organic goods or otherwise willfully misusing the USDA organic seal may be subject to fines and imprisonment under the Trademark Counterfeiting Act. This also means the U.S. Department of Homeland Security, Customs and Border Protection (CBP) can now detain, reject, or re-export imported products confirmed to be fraudulently using the USDA organic seal.
Registration of the mark also means that the USDA has the right to seek to restrict uncertified farms and businesses from using what the USDA deems to be a mark that is “confusingly similar” to the USDA’s organic seal.
We are all familiar with the “USDA Organic” seal, but it’s worth noting that the description of the mark that is registered with the USPTO is a “mark [that] consists of a circular design comprising an outer band circumscribing an upper unshaded half containing the term ‘USDA’ and a lower shaded half containing the word ‘ORGANIC’ superimposed on multiple equally spaced lines converging in perspective view.” The phrase “multiple equally spaced lines converging in perspective view” is the description of the graphic representation in the seal of a field that is in the lower half of the circle overwhich the word “organic” is placed.
What remains to be seen is what the USDA might deem to be marks that are “confusingly similar” to its registered mark.
How Does This Impact Certified Operations?
Certified organic operations are not required to change their labels to include the registration mark ® of the seal, and certified organic products currently in the marketplace still meet the requirements of certification. Operations may choose either version of the seal and existing labels do not need to be revised or discarded.
If operations choose the updated version of the organic seal with the registration mark ®, it is available for download in multiple file formats on the USDA’s Agricultural Marketing Service website. As always, certified operations will have to seek approval from their certifier before making any product label changes.
For More Information
You can find more information about the National Organic Program and the USDA organic seal on the USDA’s AMS website at www.ams.usda.gov.