As the largest Kosher certifying agency in the world, the Orthodox Union is deeply concerned about protecting the integrity of its kosher symbol. Thus, when a product bearing an unauthorized OU appears, as occasionally happens, the Orthodox Union responds quickly and efficiently.
Over 500 cases of questionable use of the OU symbol are investigated each year. This number is a miniscule percentage when compared to the 275,000 products authorized to bear the OU symbol. Of the 500 cases investigated annually, approximately 50 cases require corrective action.
It is important to note that the Orthodox Union is not the only target of trademark misuse. Indeed, all major kosher certifying agencies, and in a broader sense, all manufacturers of brand name goods (e.g., Disney, Rolex, etc.), are regularly plagued by trademark infringement.
How Does It Happen?
There are a number of ways in which symbol misuse can happen.
Unregistered Products: Notwithstanding a plant’s certified status, each and every product needs to be licensed and registered with the Orthodox Union. Even though the finished product is kosher, lack of adherence to procedural requirements for registering new labels can sometimes result in embarrassing situations, withdrawals, and even legal action. The importance of an Orthodox Union manufacturer properly registering each brand name and product cannot be understated. A few years ago, an Orthodox Union RFR (Rabbinical Field Representative) spotted an unfamiliar brand of chopped liver bearing an OU. The brand and product were not listed in our database as certified. The company listed on the container could not be located (since it was actually an alias), and the supermarket was instructed to withdraw the product from sale.
Shortly thereafter, I received a call from one of our client companies identifying the ownership of this product. It was in fact kosher, and produced in an OU certified plant. Incidentally, repeated requests had been made to this manufacturer to update its Schedule B (list of certified products). The moral of the story is that not accurately maintaining a company’s Schedule B can have a very negative outcome.
MISCONCEPTION THAT THE OU IS A UNIVERSAL KOSHER SYMBOL: A jelly manufacturer in Turkey, supervised by the local rabbinate, begins to export jelly to the United States. Erroneously told that the OU is the generic kosher symbol in the United States, the company uses the symbol without certification.
PRINTING ERROR: A major New York supermarket chain introduces a new line of canned meat and pasta. In order to create a mock-up of the new label, the supermarket graphics department takes an existing label of OU certified canned peas and carrots. The designers unintentionally copy the OU.
INTENTIONAL FRAUD: A beverage manufacturer applies for Orthodox Union certification. During our inspection of the plant, we learn, for example, that the beverages are pasteurized on the same equipment used to pasteurize non-kosher grape drinks. We tell the manufacturer that we cannot certify his products. Determined to increase sales, company executives decide to use the OU anyway.
ACCIDENTAL VIOLATION: In violation of the established kosher program, an OU certified company mistakenly uses a non-kosher source of shortening. The rabbinic field representative (RFR) spots the nonkosher ingredient during his next visit, but the finished goods have already been shipped to supermarkets around the country.
Protecting the OU Symbol
The OU symbol has been registered in the United States and in many other countries. The symbol is also registered with the U.S. Customs service, which can seize and destroy items imported from other countries.
The Orthodox Union aggressively protects the integrity of the OU symbol through its Trademark Compliance Department. The Orthodox Union sends a letter to unauthorized users of the OU symbol identifying the symbol as an internationally registered certification mark and stating that its unauthorized use constitutes trademark infringement and violates international and United States federal trademark laws (i.e. false advertising, state kosher laws, etc.). The Orthodox Union demands that the product’s manufacturer, as well as its supposed kosher status (if known), be revealed to the OU within 48 hours.
The majority of products bearing an unauthorized OU do, in fact, turn out to be kosher. The product may be innately kosher or supervised by a legitimate kosher certifying agency. (Orthodox Union staff will often have to inspect the plant to determine the product’s kosher status.) If the product is kosher, the Orthodox Union will assess damages for trademark infringement, require cessation of the unauthorized use, and the case will be closed.
If, however, the product is not kosher or not kosher certified to our standards, the Orthodox Union will require an immediate market recall.
“Kosher Alerts,” which inform the public that the product bears an unauthorized OU symbol, are placed in all the Jewish newspapers in the area of distribution, as well as on our web site, e-mail subscription list and other kosher related web sites. (The cost of a withdrawal, which often runs tens of thousands of dollars, is in itself a strong disincentive to cheat.) The OU monitors the withdrawal effort through spot inspections of stores and warehouses. Once the withdrawal has been accomplished, the OU will also assess damages.
It is important to note that the entire marketing chain is liable for the distribution of an infringing product, subsequent to notification of the product’s illegal use of a trademark symbol. In a recent case, the Orthodox Union filed a lawsuit against a manufacturer, two wholesalers and three supermarket chains because of their failure to withdraw product bearing an unauthorized OU symbol from the marketplace. Although the primary responsibility lies with the manufacturer, the wholesaler and retailer can be held responsible for trademark infringement as well, once they have been advised that a product bears an unauthorized trademark.
At times, the Orthodox Union may also enlist the help of outside agencies, including consumer protection agencies, as well as state attorneys general and departments of agriculture. Nearly half of the states in this country have instituted kosher laws, which are, of course, helpful in protecting the integrity of the OU. What is more, the OU has successfully filed lawsuits in foreign countries. In one European country, where the legal system had never mandated a food withdrawal, the Orthodox Union won a decision requiring a recall of a product bearing an unauthorized OU.
Interestingly, the Orthodox Union aggressively pursues unauthorized usage of the OU even in nonfood related items. Electronics manufacturers such as Casio and Radio Shack, as well as universities and laundromats, have all received cease and desist letters from the OU. The reason for this is simple: unauthorized usage of the OU dilutes its exclusivity.
How An Unauthorized OU Is Discovered
There are a number of ways in which unauthorized OU’s come to our attention. The OU has over 500 RFR’s, many of whom crisscross the US as well as other countries, overseeing plants. Occasionally they spot a suspicious-looking product bearing the OU. (My wife hates shopping with me. Having worked in the trademark compliance department for over eight years, I feel compelled to examine all products bearing an OU.) Sometimes, calls come from RFRs, from other certification agencies, or even from governmental agencies charged with monitoring the food industry. I once received a call from someone at the Minnesota Department of Agriculture who was investigating a company that bore fraudulent organic statements on its labels in addition to an unauthorized OU.
Still, other unauthorized OU’s are turned in by OU-certified companies reporting on competitors who are unlawfully stealing a share of the kosher market. I have even been provided with the date of arrival and name of the ship carrying imported products bearing unauthorized OU’s. (I contacted United States Customs and requested they seize the product.) Whistle blowers within certified companies have also reported intentional and accidental violations of the kosher program.
Lastly, we audit supermarkets on a regular basis. An inventory is taken of all the brands bearing an OU. This list is then matched against the OU database of certified products to ascertain that the kosher symbols are all authorized. The date code on a package may also be verified.
How You Can Help:
If you spot a suspicious-looking product bearing the OU (e.g., a dairy item without the requisite “D” or octopus bearing an OU), tell us. (Remember — kosher canned meatballs and spaghetti at 99 cents is probably too good to be true.) Call us at 212-613-8241 or email to verify the certification. (You need to have the brand name, product name and company as listed on the label.) If you know of a product that bears an unauthorized OU symbol or a company that is in violation of its contract with the Orthodox Union, contact me directly at 212-613-8169, via fax 212-613-0679, or email email@example.com. You may also contact my associate, Rabbi Baruch Cywiak, at 212-613-8298, via fax 212-0676, or email firstname.lastname@example.org. All sources of information will be held strictly confidential. You will be required to provide us with a label or inform us where we can obtain the product.