Private labeling: a legal structure designed to build trust

French law does not recognize "private label" as an independent legal category. However, it does allow companies, associations, federations, and professional organizations to develop systems designed to distinguish products, services, or operators that meet common requirements.

However, such an approach requires not confusing the label with certification or trademark and articulating several legal frameworks: intellectual property, contract law, consumer law, competition law and liability.

A ubiquitous concept, but lacking a general legal framework.

The concept of a label is now ubiquitous in economic life.
Consumers seek "labeled" products, companies want to highlight their environmental or social commitments, professional organizations develop their own quality standards, and networks seek to distinguish their members through shared symbols of recognition.
Yet, French law does not provide a general answer to the seemingly simple question of what a label legally is. While
the term is certainly used in numerous texts to designate specific mechanisms, often created or recognized by public authorities, there is neither a comprehensive definition of a label nor a general framework applicable to all private initiatives.
French law thus recognizes neither a "law of labels" nor a labeling contract to which compliance would simply be required.
This lack of an independent legal definition does not mean that a private entity cannot create a system presented as a label. It means that creating such a system does not consist of applying a pre-existing legal framework, but rather of constructing its structure from several legal instruments.
A label, therefore, is not a legal status.
It is a legal construct.

The label primarily serves one function: to create trust.

While the law does not generally define a label, its function is more easily identifiable.
A label allows a third party—a consumer, a professional client, an economic partner, or a member of a network—to recognize that a person, product, service, or organization meets predefined criteria.
It thus serves a function of signaling and reducing information asymmetry.
The trust associated with a label can relate to very diverse realities: the quality of a product, adherence to a method, compliance with technical requirements, a level of competence, ethical, social, or environmental commitments, or even membership in a professional community subject to common standards.
A label can therefore be understood as one manifestation of voluntary standardization: private actors define a standard and organize the conditions under which third parties can claim compliance with it.
This presentation, however, calls for an essential caveat: not every system commercially marketed as a "label" is necessarily a certification in the legal sense of the term.

Label and certification: two mechanisms that should not be confused.

The Consumer Code subjects the certification of products or services to a specific regime, governed in particular by Articles L433-3 and L433-4.
According to Article L433-3, certification is defined as the activity by which a body separate from the manufacturer, importer, seller, service provider, or customer attests that a product, service, or combination of products and services conforms to the characteristics described in a certification standard.
This standard defines the expected characteristics as well as the methods for verifying their conformity. It is developed by the certification body after gathering input from interested parties.

The certification therefore has several key characteristics:

• the intervention of an organization separate from the parties directly concerned;
• the existence of a technical reference framework;
• the performance of checks;
• certification of conformity to identified characteristics.

Article L433-4 of the same code, in principle, reserves the exercise of this activity to bodies holding accreditation issued by the national accreditation body—in France, Cofrac—or by the equivalent body of another Member State meeting the conditions stipulated by law. A body that has initiated an accreditation procedure may, however, temporarily begin its activity under the conditions set by regulation.
A company can therefore develop a private standard, select partners, and authorize them to use a common mark without necessarily engaging in regulated certification activities.
However, it must ensure that it does not present its system as an accredited certification when the legal requirements are not met.
This distinction is crucial. It is not merely a matter of word choice: it determines the applicable legal framework and obligations.

Offenses specific to certification, distinct from deceptive business practices.

Two categories of risk must be distinguished.
The first arises from the specific provisions governing conformity certification.
The Consumer Code prohibits, in particular, the issuance, in violation of Articles L433-3 to L433-7, of a title, certificate, or any other document attesting that a product or service possesses characteristics that have been certified. It also prohibits the use of any means likely to falsely suggest that an organization meets the legal requirements for certification bodies.
These prohibitions protect the regulated certification system and the quality of the bodies authorized to operate.
The second category relates to misleading business practices.
It does not only penalize the irregular exercise of a certification activity; it more broadly encompasses how a professional presents a label, approval, or guarantee to the public.
These two grounds may overlap, but they must not be confused. One protects the legal framework for certification; the other protects the accuracy of the information provided to the consumer. This distinction is among the main clarifications recommended by the legal analysis of the project.

The label is not a brand either.

The label must also be distinguished from the sign used to identify it.
A trademark is a sign that distinguishes one person's products or services from those of others. It can take the form of a name, a logo, or another sign that can be represented clearly and precisely.
The label, on the other hand, corresponds to the system to which this sign refers.
The distinction can be summarized as follows: the trademark identifies the system; the label organizes the promise attached to that sign.
Registering a trademark therefore protects the identity of the label. It is not sufficient to define the criteria for awarding the sign, to organize controls, or to determine the sanctions applicable to non-compliant users.
The trademark constitutes the visible part of the system. The reference framework, contracts, and governance mechanisms constitute its substance.

Individual trademark, guarantee mark, or collective trademark?

The choice of intellectual property medium depends on the intended purpose, the identity of the project sponsor, and how the mark is to be used.

The individual brand.

A trademark can be registered by an individual or legal entity to distinguish their own products or services.
It can also serve as the basis for a contractually organized system: its owner authorizes certain partners to use it through licenses, subject to compliance with a set of specifications.
This solution offers considerable flexibility. In particular, it allows a commercial enterprise to retain control of the mark and to contractually define the conditions of its use.
However, it does not provide any inherent guarantee regarding the characteristics of the products or services concerned. The credibility of the system will therefore depend on the established standards, contracts, and controls actually implemented.

The guarantee mark.

Article L715-1 of the French Intellectual Property Code defines a guarantee mark as a mark specifically designed to distinguish products or services for which the material, method of manufacture or provision, quality, precision, or other characteristics are guaranteed.
The applicant may not engage in any activity related to the supply of products or services of the same type as those guaranteed. This requirement reflects the pursuit of independence between the body providing the guarantee and the operators whose products or services benefit from it.
A similar principle applies to the European Union certification mark in Article 83 of Regulation (EU) 2017/1001.
The filing of a guarantee mark must be accompanied by rules of use. These rules define, in particular, the persons authorized to use the mark, the guaranteed characteristics, the methods of verification, and the conditions of use of the mark.
The guarantee mark thus appears as one of the instruments most closely resembling the function commonly attributed to a label. However, it is not suitable for all configurations, particularly when the project sponsor provides the products or services in question themselves.

The collective trademark.

A collective mark is intended to distinguish the products or services of the individuals authorized to use them under its rules of use.
It can be registered by an association or group with legal personality representing manufacturers, producers, service providers, or traders, as well as by a public legal entity. Its registration must also be accompanied by rules of use.
The collective mark primarily serves the purpose of fostering membership in a group or community of stakeholders.
It can be relevant when a federation, professional association, or network wishes to allow its members to use a common symbol in exchange for compliance with shared rules.
It does not necessarily serve the same function as a guarantee mark: the former identifies the members of a collective; the latter guarantees specific characteristics.
Guarantee and collective marks remain, however, subject to general trademark law, with the exception of the specific rules set forth in Articles L715-1 to L715-10 of the French Intellectual Property Code, as amended in 2019.

The reference framework: the private standard of the device.

The true legal core of the label lies not in its logo, but in the reference framework to which that logo refers.

Whether it is called specifications, charter, rules of use or reference document, this document must define with sufficient precision:

• the purpose of the device;
• the people likely to have access to it;
• eligibility criteria;
• controlled characteristics or commitments;
• the application procedure;
• the initial assessment procedures;
• the frequency and scope of the checks;
• the duration of the right of use;
• the renewal conditions;
• the procedures for modifying the reference framework;
• the rules for using the name and logo;
• the procedures for suspension or withdrawal;
• the applicable sanctions;
• potential avenues for appeal.

In the case of guarantee marks and collective marks, the existence of usage guidelines is mandated by law.
Even when the system relies on an individual mark, drafting such guidelines remains essential in practice.
Without prior, objective, and verifiable criteria, the label does not refer to any identifiable guarantee. It risks becoming a mere marketing ploy, or even a presentation likely to mislead the public.
The guidelines can thus be analyzed as a private standard: it does not possess the general force of a legislative or regulatory standard, but becomes mandatory for operators who choose to adhere to the system.

The private nature of the reference system.

The Council of State expressly recognized the private nature of a standard developed by a certification body.
In a decision of March 24, 1999, concerning the "S-304 Quality Syndic" standard, it noted that the rules in question were intended to apply only to property managers applying for certification and that the penalty for non-compliance consisted solely of the withdrawal of certification.
It concluded that the body did not exercise any prerogative of public authority and that the dispute did not fall under the jurisdiction of the administrative courts, even though the existence of the standard had been mentioned in the Official Journal.
This decision illustrates a fundamental characteristic of private certification: its legal effectiveness stems, in principle, from the voluntary participation of operators and the resulting contractual commitments.
The publication of a standard, its reputation, or its economic influence are not, in themselves, sufficient to confer upon it a regulatory character.
However, the situation may be different when a private standard or reference framework is explicitly integrated into a legislative or regulatory text, in which case the legal effects attached to its compliance no longer stem exclusively from the voluntary adherence of operators.

The label as a contractual agreement.

Contract law plays a role in the construction of the label that is at least as important as trademark law.

Membership in the scheme can be organized through various actions:

• a membership contract;
• a trademark license;
• a labeling agreement;
• a referencing contract;
• a charter made contractually enforceable;
• a partnership agreement;
• or even an audit and control agreement.

These documents must define the respective rights and obligations of the holder and the user.
The holder may, in particular, commit to processing applications, conducting audits, preserving the reputation of the system, and ensuring respect for the rights associated with the mark.
The user generally commits to complying with the standards, submitting to audits, providing necessary information, reporting certain changes in their business, and ceasing all use of the mark in the event of suspension or withdrawal.
Particular attention must be paid to the relationship between the contract and the standards.
The contract must specify whether the standards are attached to it or incorporated by reference, under what conditions they may be modified, and from what date any such modifications become enforceable.
The procedures for suspension and withdrawal must also be sufficiently predictable. When the label plays a significant role in the user's business, its loss can have substantial economic consequences. A decision that is insufficiently justified, made without due process, or based on imprecise criteria can become a source of litigation.
The effectiveness of the system therefore requires firm, but not arbitrary, governance.

Communication about the label in light of misleading commercial practices.

The creation of a label raises not only the question of its internal structure, but also how it is presented to the public.
Article L121-2 of the French Consumer Code defines as misleading any practice based on false or misleading claims, indications, or presentations concerning the essential characteristics of a good or service, or the qualities, skills, and rights of the professional.
Article L121-3 also addresses the omission of substantial information or its ambiguous, unintelligible, or delayed presentation.

Article L121-4 targets labels and quality marks even more directly. In particular, the following are considered misleading:

• displaying a certificate, quality label or equivalent without having obtained the necessary authorization;
• the act of claiming that a code of conduct has received the approval of a public or private body when this is not the case;
• the act of claiming that a professional, product or service has been approved, endorsed or authorized by a public or private body when this claim is inaccurate;
• or failure to comply with the conditions under which the approval, accreditation or authorization was granted.

Both the designer and the users of the label must therefore communicate precisely about:

• the identity of the body that awards the symbol;
• the exact nature of the criteria evaluated;
• the extent of the checks carried out;
• the independence or lack thereof of the control body;
• the validity period of the authorization;
• the existence or not of an accreditation;
• the existence or not of public recognition.

A private label should not be presented as an official accreditation or regulated certification when it lacks these characteristics.
Similarly, a guarantee limited to a specific aspect of a product or service should not be presented as covering all of its qualities.

Control: a condition of credibility and a source of responsibility.

A label whose criteria are not effectively controlled not only loses its credibility, but can also expose its holder to legal risks.

The design of the device therefore requires determining:

• whether the control is documentary or carried out on site;
• if it intervenes before allocation, periodically, randomly or upon notification;
• if it is provided by the holder, by an internal committee or by an independent third party;
• if unannounced audits can be carried out;
• if users are subject to a voluntary reporting obligation;
• What procedural safeguards accompany unfavorable decisions?.

The level of independence of the audit must be consistent with the communication strategy employed.
A system controlled solely by its promoter cannot be presented in the same way as a certification carried out by an accredited third-party body.
Furthermore, the certification holder could be held liable if they claim to conduct regular audits when these are nonexistent or purely formal, if they maintain the benefit of the label for an operator whose shortcomings they are aware of, or if they allow the use of the mark to continue after its withdrawal.
The more precise and demanding the promise made to the public, the more effective and documented the audits must be.

The label as an instrument of private standardization.

The label, in its function, can be compared to voluntary standardization mechanisms.
In both cases, a set of technical, qualitative, or organizational criteria is developed for application by various economic operators.
However, this comparison should not lead to equating a private standard with a harmonized standard at the European level.
In the James Elliott Construction judgment of October 27, 2016, the Court of Justice of the European Union ruled that a harmonized standard adopted by the European Committee for Standardization (CEN) on behalf of the Commission, and whose references had been published in the Official Journal of the European Union, fell within the scope of EU law for the purposes of the Court's preliminary ruling jurisdiction. This decision stems from the specific legal effects attached to harmonized standards within the European product conformity system.
A simple private standard does not, by its very nature, have such scope.
It remains, in principle, an act of private law whose binding force derives from contracts or the voluntary adherence of operators.
The distinction may, however, diminish when the private standard acquires such influence that it conditions, in practice, access to a market.

Competition law and access to the label.

A label can promote quality, transparency, and the dissemination of best practices. However
, due to its reputation or the requirements of certain clients, it can also become a de facto prerequisite for accessing certain customers, tenders, distribution networks, or partnerships.
Its access rules must then be designed objectively, transparently, proportionately, and non-discriminatorily.
Particular vigilance is necessary when the label is controlled by companies already active in the market or by a professional organization representing the main players in a sector.

The device must not be used for:

• artificially restrict market access to a closed circle;
• to eliminate certain competitors;
• imposing criteria that are not sufficiently related to the purpose of the label;
• granting certain actors discretionary power to refuse;
• organize exchanges of commercially sensitive information;
• to harmonize the economic behavior of users beyond what is necessary for the advertised guarantee.

In the Fra.bo judgment of 12 July 2012, the Court of Justice upheld the application of the rules on the free movement of goods to the activities of a German private body whose certification, in practice, determined access for certain products to the national market.
The lesson is significant: the private nature of the body and its rules is not sufficient to preclude all legal oversight when it has the power to effectively regulate market access.
The European Commission's 2023 guidelines on horizontal cooperation agreements devote considerable attention to standardization agreements. They identify, in particular, as favorable factors the openness of the process, transparency, accessibility of the standard, and the absence of discrimination in the conditions of participation or use.
These principles are not automatically applicable to every private label. Nevertheless, they provide particularly useful benchmarks when the system is likely to structure a market.
The more essential a label becomes, the more its holder must be able to justify:

• the relevance of the criteria used;
• transparency of the procedure;
• equal treatment of candidates;
• the proportionality of the sanctions;
• the prevention of conflicts of interest;
• the existence of effective legal remedies.

The label as an instrument of private governance.

The label is therefore not limited to a distinctive sign or a communication tool.
It organizes a community of stakeholders.
It defines the conditions for entry into and continued participation in the system.
It establishes common standards.
It distributes oversight powers.
It provides for sanction and exclusion procedures.
It can also organize audits, training, financial contributions, communication obligations, or common rules for presenting products and services.
From this perspective, the label constitutes an instrument of private governance.
Through the framework and the agreements that ensure its enforceability, its creator develops a limited set of standards to which users choose to adhere in order to benefit from the reputation and trust associated with the label.
This autonomy, however, cannot become discretionary power.
Governance must remain consistent with the commitments announced to the public, the rights granted to users, and the system's position within its market.

Designing a label: a necessarily methodical approach.

Building a legally robust label involves several steps.
The first is to determine its purpose: is it to guarantee a characteristic, to promote a commitment, to distinguish members of a network, or to disseminate a professional standard?
The second concerns identifying the project sponsor. A commercial company, an association, a federation, a public legal entity, or an independent organization do not have the same options, particularly with regard to the guarantee mark regime.
The third lies in defining objective, measurable, relevant, and verifiable criteria.
The fourth concerns the organization of governance: admission, monitoring, renewal, sanctions, withdrawal, conflicts of interest, and appeals.
The fifth involves choosing the appropriate intellectual property protection: individual trademark, guarantee mark, or collective mark.
The sixth consists of contractually organizing membership in the scheme and the use of the mark.
The seventh concerns communication: the terms used, the guarantees announced, and the presentation of controls must remain strictly accurate.
Finally, the scheme must be monitored over time. The reference document must be able to evolve according to a predictable procedure, controls must be effectively carried out and unauthorized uses of the sign must be prosecuted.

Conclusion.

The paradox of private labels lies in the fact that they constitute a widely used economic instrument without benefiting from an independent legal framework.
This lack of status should be interpreted neither as a prohibition nor as unlimited freedom.
It necessitates a structured approach.
Trademark law protects the mark.
Contract law governs its allocation and use.
Consumer law regulates the promises made to the public.
The certification system prohibits usurping the status or prerogatives of a certifying body.
Competition law limits the power that can be exercised over applicants and users.
Liability law, where applicable, sanctions any discrepancies between the advertised guarantees and the reality of the controls.
Private labels can thus become a genuine mechanism for voluntary standardization, differentiation, and economic governance.
But their value never resides solely in their name or visual identity.
It stems from the coherence of the legal framework that underpins the trust placed in them.

References.

Consumer Code, Articles L121-2 to L121-4, L433-3 and L433-4, Articles L433-3 to L433-7.
Intellectual Property Code, Articles L715-1 to L715-10.
Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark, specifically Articles 83 to 93 relating to Union certification marks. French
Council of State, 24 March 1999, Association Qualité France (reference "S-304 Qualité Syndic"): recognition of the private nature of the certification reference.
French Supreme Court (Commercial Chamber), 10 July 2019, No. 18-14.774, Label Rose: assessment of the potentially misleading nature of using the term "label" as a trademark.
CJEU, 12 July 2012, Fra.bo SpA v. Deutsche Vereinigung des Gas- und Wasserfaches (DVGW), C-171/11: application of the rules on the free movement of goods and services to a private body whose certification is a condition for access to the market.
CJEU, 27 October 2016, James Elliott Construction Ltd, C-613/14: nature of the harmonized standards published in the Official Journal of the European Union and the Court's jurisdiction to interpret them.
Commission Communication – Guidelines on the applicability of Article 101 TFEU to horizontal cooperation agreements, OJ C 259, 21 July 2023, in particular the sections on standardisation agreements.
“Certification, a tool of normative modernity,” Dalloz Collection, 1996.
“1984, year of the administrative reception of technical standardization,” French Review of Administrative Law, 2025.
Jurisport, dossier “Standards, labels, certifications, qualifications: a sprawling system,” 2018.
Council of State, Soft Law, 2013 annual study.