4.2: Early Trademark Systems

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Learning Objectives

After completing this section, you will be able to

Discuss the origins of trademarks.
Analyze examples of early forms of trademarks.

Bronze Age Origins

Scholars of antiquity give Early Bronze Age potters the credit for creating the world’s first trademarks by imprinting their works with distinctive markings. We assume that these marks were meant to indicate the origin of a particular work or the identity of its craftsman, but the historical record is not conclusive on this point. But an examination of the potters’ seals found on Corinthian artifacts dating to 2000 BC suggests this is a reasonable supposition. Trade and commerce between the tribes and early civilizations of that era were expanding rapidly, and in order to be mutually beneficial, trade requires a certain amount of trust in the provenance and quality of goods. These early potters’ trademarks seemed to have served that purpose by distinguishing the goods of quality craftsmen from those of unknown or uncertain sources.

Trademarks have always been inextricably bound up with commerce. And as commerce grew and developed over the centuries, so did the use of trademarks. Marks have been found, for example, on works ranging from Egyptian pots to the swords of Roman blacksmiths. But it was in the medieval period, with the emergence of powerful craft guilds, that trademark usage really expanded. Their marks identified a work as being made by a particular guild or member of that guild, and therefore continued the long tradition of identifying the origin of goods. But medieval trademarks also served other functions. They became a means by which guilds could control the quality of work of fellow guild members and, because of a trademark’s association with quality, ultimately, a source of competitive advantage in the market.ⁱⁱ Trademarks thus began to acquire something akin to the existential “moral rights” found in later copyright statutes—i.e., the right of a creator to defend the quality, originality, and “personality” of their work.

Trademark use in medieval times also acquired a public interest function. As Arthur R. Miller and Michael H. Davis note in Intellectual Property: Patents, Trademarks, and Copyright in a Nutshell, “Statutes dating back as early as the thirteenth century show that [trademark] was eventually recognized as having social consequence. These statutes were meant to protect the public by preventing the sale of unidentified goods whose quality could not be ascertained.”

One notable trademark from the time was that of Löwenbräu Brewery, which claims to have used its lion mark since its founding in 1383.ⁱⁱⁱ

Early Trademark Cases

Scholars had until only recently attributed the first reported trademark case in Anglo-American law to be Southern v. How, which was decided in 1618. This despite the fact that the case involved not a trademark but the sale of counterfeit jewels.^iv Its connection to trademark came from a reference by the presiding judge to an earlier, unnamed, and unreported case in 1584 involving a suit brought by a cloth maker against another cloth maker who had used his mark. That earlier clothier case, only recently discovered and now known as Sanforth’s Case, is now held to be the earliest reported trademark case in Anglo- American law. It establishes beyond a doubt that even 250 years before the Industrial Revolution, trademark infringement was viewed as a tort of deceit and a violation of the laws against unfair competition.^v

To quote from a contemporary 1656 legal report:

“The action upon the case was brought in the [Court of] Common Pleas by a clothier, that whereupon he had gained great reputation for his making of his cloth … to his benefit and profit, and that he used to set his mark on his cloth whereby it should be known to be his cloth; and another clothier, observing it, used the same mark to his ill-made cloth [in order] to deceive him.”

In the more than four centuries since then, as commerce and industry have evolved into an $80 trillion a year global marketplace unimaginable to the people of Sanforth’s Casetime, its verdict that trademark infringement is competition most unfair and demands redress still serves as the foundation and wellspring of worldwide trademark policies and statutes today.

Footnotes

iiArthur R. Miller and Michael H. Davis,Intellectual Property: Patents, Trademarks, and Copyright in a Nutshell. (5th ed., p. 25). St. Paul MN: West Publishing Co., 2007.
iiiGary Richardson, Brand Names Before the Industrial Revolution, National Bureau of Economic Research, NBER Working Paper No. 13930, April,2008.
ivMcKenna, M. The Normative Foundations of Trademark Law(December 30, 2010). Notre Dame Law Review, Vol. 82, No. 5, p. 1839, 2007. Retrieved from SSRN: http://ssrn.com/abstract=889162.
vKeith M. Stolte, How Early Did Anglo-American Trademark Law Begin? An Answer to Schechter’s Conundrum, Fordham Intellectual Property, Media and Entertainment Law Journal, Volume 8, Issue 2, 1997.