The NIOSH NPPTL has updated the Counterfeit Respirators / Misrepresentation of NIOSH-Approval webpage with the following information concerning NIOSH ownership of respirator certification marks.
NIOSH has successfully recorded the NIOSH stylized logo with and without text, as well as the certification marks N95, N99, N100, P95, P100, and the term “NIOSH-approved” with the U.S. Patent and Trademark Office (USPTO). NIOSH, as the certifying federal entity for the N95 Respirator Approval Program, owns these certification marks, meaning that NIOSH controls who can use these marks. Accordingly, NIOSH will let manufacturers use these certification marks only if they become NIOSH-approval holders because of their products satisfying the NIOSH’s regulatory standards set forth in 42 C.F.R. Part 84. While these marks have historically been protected under common law (as opposed to a trademark registration) since they were established by the program regulations, these marks are now registered with the USPTO as federal registrations, as well as in various foreign countries, and are subject to additional protections under the Lanham Act, 15 U.S.C. §§ 1051 et seq. and foreign trademark laws. Thus, any misuse of these marks, including on respirators that have failed to satisfy NIOSH’s regulatory requirements or have not received a NIOSH approval, is a direct violation of applicable trademark laws and NIOSH may pursue action as necessary. This also applies to approval holders that misuse or misplace the marks or terms against the regulations, specifically outlined in 42 C.F.R. Part 84.33.
