Sunday, 23 December 2012

A Brief History of Trademarks


Of all the regulatory systems that get lumbered with the umbrella of “intellectual property”,  Trademarks is the one with the oldest history.

Popular accounts date trademarks back to the troglodytes. Troglodytes loved their trademarks apparently. Cave paintings demonstrate the importance of leaving one’s mark on things, in much the same way as Coca-Cola likes to leave its mark on bottles of fizzy sugar water.

You can probably tell that I’m a bit skeptical.

Personally, I think the cave paintings show a deeper need. An expression of identity, a questioning of “who am I?” An attempt to leave a mark upon the Earth to say “I was here” that will last longer than the brief flash of life would otherwise have us stay.

Other authors see a desire to establish a brand presence. Well oh-kay…

Trademark history is also lacking a character. Copyright has its characters, as does Patent Law. However trademark history seems to lack anyone of any real character or interest.

Well, except perhaps Thomas Jefferson.

Pre-Jefferson Trademarks

Bass Brewery's logo 1875
Trademarks are old (I just don't think they're Palaeolithic old). Evidence of their use exists in both medieval Europe and Ancient Rome[1]. The first registered UK trademark is that of the Bass Brewery, a simple red triangle registered in 1876. The first US registered mark was for Samson Rope in 1884. The logo is still used today.

Earlier examples also exist, for example in Ancient Egypt & China. The marks are generally taken to be an indication of origin, to both take credit for the quality of the work but also perhaps to indicate who to blame if there was a defect.

Gary Richardson has argued that subtler systems of product differentiation may have served a larger purpose than simply indicating the origin of the product. To quote the abstract from the relevant paper:
"In medieval Europe, manufacturers sold durable goods to anonymous consumers in distant markets [...] by making products with conspicuous characteristics. Examples of these unique, observable traits included cloth of distinctive colors, fabric with unmistakable weaves, and pewter that resonated at a particular pitch. These attributes identified merchandise because consumers could observe them readily, but counterfeiters could copy them only at great cost, if at all. Conspicuous characteristics fulfilled many of the functions that patents, trademarks, and brand names do today. The words that referred to products with conspicuous characteristics served as brand names in the Middle Ages." [See [1], below. Emphasis added.]
Trademark law really got cracking however after the industrial revolution (and that's turning out to be an interesting inflection point in the history of IP but I digress...). And that's where Thomas Jefferson comes in.

Thomas Jefferson

Thomas Jefferson.
In 1791, a group of Boston sailcloth makers petitioned Congress to be allowed to register their marks. The matter was referred to Thomas Jefferson[2], then Secretary of State, who decided:
That it would, in his opinion, contribute to fidelity in the execution of manufacturing, to secure every manufactory, an exclusive right to some mark on its ware, proper to itself.
That it will, therefore, be reasonable for the general government to provide in this behalf by law for those cases of manufacture generally, and those only which relate to commerce with foreign nations, and among the several States, and with Indian tribes.
The sailcloth makers were concerned that they would be undercut by makers of inferior quality sails, who would misuse the Boston marks to mislead customers. Customers would buy the cheaper sailcloths and develop a poor view of the Boston makers whose marks had been used on them.

Until the government legislated for the exclusive use of registered marks, the most common remedy from the law would have been to sue for damages. This however was probably ineffective -- counterfeiters continued at will. A letter printed in the Columbian Sentinel was fulsome in its praise of Jefferson's decision:
[I]t is of the greatest importance to the rising prosperity...[and greatness] of this country, that the manufacturer should be secured in the benefit and profit of his ingenuity, labour and industry, being an incitement...to carry on, persevere in, and bring to the greatest possible perfection the various goods and articles [they make].
There is no greater check to this laudable spirit of enterprise...than that of impostors fraudulently counterfeiting of marks...and selling bad and spurious articles for good, real, and genuine [goods]. It effectively cools the ambition of selling...and is highly prejudicial to the good repute of our manufacturers in foreign parts, [lessening our countries commerce].[4]
TJ took a much more positive position towards trademark protection than he did for copyright or patents. The restrictions on liberties that were threatened by those systems were still there -- however this time there were no serious arguments that such liberties had to be guarded. For copyright and patents, the argument was that the restraint on trade was outweighed by the need for limited monopolies in order to create incentives to work. For trademarks, no such trade-off exists. That's because trademarks were seen as incentives for everyone to work. There was nothing to stop honest manufacturers creating their own marks and practicing the same trade. The only prohibition was that they could not represent their goods as originating from somewhere else.

Justification for Trademarks


So a system of registered trademarks was good because:

  • It encouraged pride in workmanship, since it linked manufactured goods with a manufacturer's reputation.
  • It protected the national economy from having the reputation of its industry undermined by poorly made knock-offs.
  • It protected the public consumers from being deceived by counterfeiters. 
Recall that, in the development of patent law, the right and ability to work was part of God's Law. Therefore, patents had to be limited so as to not interfere with the will of God. Trademarks also supported this concept of God's Law, since protecting ones reputation (and isn't reputation everything?) was critical to safeguard the right and ability to work. Trademarks were not seen as potentially unjust encroachments on liberty... not even by the likes of TJ himself.


These developments in trademark law were post the industrial revolution. The arguments justifying the changes were entirely instrumentalist and economic in nature. No metaphor used at all.

Finally, I think I might wrap up this series with a quick look at Designs, Plant Breeder Rights and other sui generis protection systems.





Footnotes:

  1. See Richardson G, Brand Names Before the Industrial Revolution, NBER Working Paper No. 13930 (downloaded 18 Dec 2012).
  2. Trademarks : Fingerprints of Commerce, About.com (downloaded 22 Dec 2012).
  3. Johnson D, Trademarks: A history of a billion-dollar business, InfoPlease (downloaded 22 Dec 2012)
  4. Schechter F, The Historical Foundations of the Law Relating to Trade-Marks, 1925.

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