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III

Trademarks
I. History
The Historical Development of Trademarks
SIDNEY A. DIAMOND'
2. Antiquity
In all likelihood, the first kind of marking was the branding of cattle
and other animals. This began long before reading and writing, so that
for many centuries brands took the form of designs only. The English
word "brand," incidentally, is derived from the Angh-Saxon verb mean-
ing "to burn." Note that the word survives, not only in its literal sense,
but also in the pertinent expression "brand name."
Wall paintings of ancient Egypt show cattle being branded by field
workers. Cave paintings of southwestern Europe, dating from the late
Stone Age or early Bronze Age, show cattle branded on their flanks.
The Book of Genesis contains several references to branding. When
Cain was expelled from the Garden of Eden after killing Abel, the Lord
set a sign upon Cain-and some translations use the word "mark"
instead of "sign." This may be the earliest literary reference to brand-
ing. Whoever wrote the passage in Genesis evidently was familiar with
the practice ....
Pottery jars were necessities of daily life in GreeCe and Rome. The
maker's name generally was placed on the handle ... Porcelain was a
Chinese invention '" It may be considered a refinement of pottery and
appeared much later. Early porcelain pieces typically bore date marks,
identifying the emperor during whose reign the object was made ...
Sometimes the maker's name also appeared; and occasionally this was
accompanied by an indication of the place of manufacture or of the
destination specified for the particular piece. Porcelain dated the second
year of the reign of Emperor Wu Feng can be checked against other
historical sources. That year translates into 57 B.C. in our system. Since
this was only about two thousand years ago, it is possible to identify
objects from such periods with some degree of confidence.
Bricks and tiles bear an obvious relation to pottery. They probably
had their origin also in observations of the characteristics of sun-dried
'65 TRADgMARK REP. 265, 266-88 (1975).
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History
445
mud. The earliest identified markings on bricks and tiles come from
Mesopotamia and Egypt. Sometimes the inscription was the name or
symbol of the monarch, indicating either that it was built for him or
during his reign. Sometimes the symbol indicated the particular con-
struction project for which the building materials were intended. Many
Roman terra-cotta tiles and bricks have survived. Typically, these bear
either the maker's name or a factory mark. In some instances, the source
of the clay used for the particular tile or brick is identified. Some of the
names inscribed in the material have been identified as the builders of
the particular structures who had ordered the fabrication of the tiles or
bricks. A number of the early Roman inscriptions, produced by stamps
impressed in the moist clay, appear in reverse ... Later, it was realized
that the stamps must be prepared in reverse form in order for the
inscription to come out correctly ...
Ancient lamps and other articles made of clay have been found with
the equivalent of true trademarks, used to indicate source. The apparent
reason for this use of marks in ancient times was a response to the
expansion of trade. Goods traveled to comparatively distant markets,
which represented a substantial change in the customary method of
doing business directly with an artisan in his shop. Although the
suppliers were individuals rather than enterprises, the need for source
identification evidently was recognized because of demands from remote
consumers for repeat orders for goods whose quality had proved satisfac-
tory. Quite clearly, such marks performed the same basic functions as
the modern trademark.
During the period 1300-1200 B.C., there was substantial trade
between India and Asia Minor. The Hindus regularly used marks on
their goods.
Somewhat later, the Roman oil lamp became an important article of
trade. About one thousand different Roman potters' marks have been
identified as in use during the period of approximately three centuries
running from 35 B.C. to 265 A.D. The FORTIS brand appears to have
been very successful; specimens bearing that mark come not only from
Italy but also from places that now are in France, Germany, Holland,
England and Spain. One writer states that the FORTIS mark was copied
and counterfeited, which would account for the large number of speci-
mens over a wide area. Conceivably, it became the generic designation
for a particular type of oil lamp and was used on that basis by competing
manufacturers in other areas ...
Some of the Roman potters' marks were rather imaginative in their
concepts. For example, a potter named Lupus (the Latin word for
"wolf') adopted the design of a wolfs head as his trademark. Markings
were used on other types of goods in Roman times. One evidently
important export item was ointment for the treatment of the eyes; the
name of the Roman doctor who compounded the ointment appeared on
the container. Identifying marks also were used on Roman wine and
cheese for export.
From marks of this sort, it is only a short step to sign-boards on
shops. However, in some cases at least, it seems probable that the sign-
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Trademarks
boards came first and the designs on them later were reproduced as
markings on the goods.
Sign-boards were used by ancient Egyptians, Greeks and Romans.
Many have been found m Pompeii and Herculaneum, where the volcanic
eruption that destroyed the cities also preserved their ruins. It apparent-
ly was COmmon practIce to use rebuses (like the design of a wolfs head
to represent Lupus the potter) when the names of the individual
permitted this kind of treatmen t. s
3. Mediaeval Times
Beginning about 500 A.D. and continuing for almost a thousand
years, western mankind lived through a time known as the Dark Ag
whIch was characterized by a decline of learning. During this period,
use of marks vIrtually dIsappeared. Artisans were unable to read or write
even the sImplest types of inscriptions. Markings on swords and other
weapons seem to have been the only kind that survived at all.
In .... the fourteenth to the sixteenth centuries, there was a revival
of learnmg and also a vast expansion of trade. As a corollary to these
developments, there was. an increased use of.marks of many different
kinds. However, much IllIteracy continued and accordingly marks tended
to be restncted to designs or crude monograms. In the mediaeval period
use .of marks proliferated to such an extent that it becomes
to Identify vanous types and to categorize them.
. First were the personal marks, which identified individuals. These
mcluded coats of arms and signets or seals. Another type of personal
mark was the. house mark, literally affixed to a house, which identified
the famIly hvmg there. If the householder became an innkeeper or a
shopkeeper, the house mark naturally found its way on to the sign that
was put out to attract customers. And if the householder was an artisan
the house mark also would be applied to his goods, especially when
began to sell them to customers other than his close neighbors.
Second were the proprietary marks, which were used to indicate the
of goods. In many instances, the proprietary mark was
derIved from the house mark; the same symbol that appeared on the
would be applied to tools and other articles to identify them with
theIr owner and permIt hIm to claim them if they were lost or taken
away. SImIlarly, house marks became the basis for cattle brands.
. It was common in mediaeval times for a merchant to adopt an
IdentIf'ying mark that appeared on packages or on the goods themselves
espeCIally when they were to be shipped for considerable distances.
frequently, mentioned incident involved some balls of wax that were
recovered from a shipwreck. The merchants who had shipped the wax
were able to estabhsh theIr ownership of the salvaged property by the
proprIetary marks that appeared on the goods ....
. Still kind of mark was the appellation of geographical
OrIgm. TypICal were the tapestries of continental Europe. These were
marked WIth the place of origin. In addition, tapestries sometimes bore
an offiCIal stamp of guarantee certifying their quality. And the personal
mark of the weaver also IS found on Some tapestries. The cloth trade in
History 447
England provides another example of the use of marks of geographical
origin. By the end of the fifteenth century, these marks also became
recognized as the means of identifying cloth of superior quality.
During early times, many other kinds of articles were marked. We
are not always certain of the reason or the purpose. Artists' signatures
became common during the mediaeval period. These, of course, are a
kind of indication of the origin of the goods-in a very personal sense.
Some artists used monograms as symbols. Bens were among the earliest
articles to bear markings. In Switzerland, some have been identified
back as far as the twelfth century ....
Watermarks on paper started in Italy and France during the thir-
teenth century. Originally, these probably were merely decorative in
nature, as is demonstrated by the fact that the same design was used by
various papermakers. In time, they came to indicate origin in a particu-
lar manufacturer.
The use of printers' and publishers' marks on books began around
1450. Colophons, as these marks still are called, sometimes derived from
the shop signs of the printers. Originally, these too seem to have been
decorative rather than proprietary. Since there was no concept of copy-
right at the time, the book trade was characterized by rivalry among
printers for the most accurate version of a particular work. This led to
the use of the mark as an identification of origin.
Trademark infringement problems arose early in the publishing
business. The preface to the 1518 edition of the works of Livy published
by Aldus of Venice warns readers of the use by other printers of
imitations of Aldus' dolphin and anchor design ....
The great feature of the mediaeval period was the rise of the guilds,
starting around the fourteenth century. These organizations were tightly
controlled groups of artisans. Typically, the members of the guild were
required to use a compulsory production mark, the principal purpose of
which was to fix the responsibility for poor quality merchandise. Guild
marks also were used to enforce control of the industry, especially
territorial trade barriers. Goods appearing On the market outside the
approved distribution area could be recognized by their markings. Abus-
es of these territorial restrictions led to early common-law concepts of
unlawful restraint of trade ....
What little we know about the penalties imposed for infringement
during the middle ages makes an interesting series of anecdotes. [T]he
following are arranged chronologically.
A law of Parma dated 1282 applied to knives, swords and other steel
or iron articles. It provided that the artisan must not use the' same or a
similar mark as any other person in the guild. The penalty was ten
pounds for each offense.
In the fourteenth century, an innkeeper passed off a low grade of
wine for a superior variety known as Rudesheimer. The Elector Palatine
ordered hanging forthwith.
In 1512 the Council of Nuremberg took up the complaint of the
famous artist Albrecht Durer, who used an "AD" monogram as his
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Trademarks
identifying mark. The Council issued a decree that "a certain foreigner"
(his name was omitted from the public record) must obliterate the Durer
monogram. As a sidelight on this decision, it may be noted that the
"certain foreigner" evidently was allowed to continue copying Durer's
works so long as he did not use the "AD" monogram-the idea of an
artist's copyright in his creations had not yet become part of the law.
... One report states that in 1554 ... there was an edict of Charles
V concerning Flemish tapestries, which provided that city of origin and
maker's marks were compulsory and that infringers were to be punished
by cutting off the right hand ....
It also should be noted that there is no indication that any infring-
er's right hand actually was cut off. The edict established that as a
penalty, but there does not appear to be any documented instance of its
enforcement.
4. Industrial Revolution
The industrial revolution was characterized by an enormous growth
of industry as modern manufacturing methods replaced the handwork of
older times. One natural result was the concentration of production
capacity in larger units and this in turn required the development of
methods of distribution to get the goods to the consumer. Along with the
growth of distribution came the use of advertising to acquaint the
consuming public with the availability of the goods. And with increasing
advertising came the increased use of trademarks in their modern
function as identifiers of the source of the goods.
French porcelain provides a familiar example of a product that
became known by its trademark. The royal factory at Sevres marked its
goods from the eighteenth century on, with the design changing from
time to time ... Meissen ware from Germany also was marked ...
Pewter ware also regularly bore identifying marks. In England,
William Hogg resisted the temptation to use his own surname as the
basis for a design mark and chose a swan instead ...
Silver hallmarks of quality and makers' marks to identify the
individual silversmith continued as the industrial revolution developed.
One famous American silversmith of the Revolutionary period whose
initials are sought by collectors was Paul Revere, the same man who
made the famous ride in 1775.
Merchants' marks also were in use around this time. In France, the
commercial identification of the seller of silk fabrics seemingly was more
important than the manufacturer, for many silk merchants' marks were
recorded and have survived ...
One interesting document, turned up not by a lawyer but by a
pottery historian, comes from the Herculaneum Pottery Works, founded
in Liverpool in 1796. A resolution of the Committee of Management
dated August 6, 1822, ordered that:
. .. to give publicity and identity to the china and earthenware
manufactured, the words "Herculaneum Pottery" be stamped or
History
marked on some conspicuous part of all china and earthenware hereaf-
ter made at this manufactory ....
5. Development of Modern Trademarks
449
. .. In the Anglo-American legal system, protection for trademarks
was quite late in coming, aside from the old laws prescribing bizarre
punishments for violations in specific industries. The beginning of legal
protection for trademarks as such generally is traced to a 1783 dictum in
an English case, stating that an action for damages would lie based upon
fraud. The shift to an equitable remedy based upon the invasion of a
property right did not come until the nineteenth century. The first
record of an injunction against trademark infringement is an English
case decided in 1838 ....
Notes and Questions
1. Sidney A. Diamond served as Commissioner of Patents and Trade-
marks from 1979-1981. He died in 1983.
2. Consider Sidney Diamond's survey of the historical predecessors of
trademarks. Do the uses of markings in antiquity, the middle ages, and
the industrial revolution reflect the same mix of concepts at playas in
modern trademark law? What did they have to do with fairness or with
competition? To what extent did these markings seek to prevent deceit?
To prevent "trespass" onto proprietary goodwill?
The Making of Modern Intellectual Property
Law
BRAD SHERMAN & LIONEL BENTLY'
Trade marks as a fonn of intellectual property
When modern intellectual property law first took shape in the
1850s, or thereabouts, trade mark law was not recognised or indeed even
considered as a possible candidate for inclusion. This is unsurprising
given that modern trade mark law, as we understand it today, did not
really exist at the time. Rather the law-which consisted of statutes such
as the 1863 Exhibitions Medals Act and offered protection for things
such as needle labels and marks for use on cutlery-remained subject
specific and reactionary; in short, pre-modern. Moreover, the nature of
the law in the middle part of the century was dilatory and chaotic.
Indeed as Joseph Travers Smith, a leading trade marks solicitor of the
time, said, 'trade marks are not recognised as having any legal validity or
effect ... there is no written law on the subject of trade marks, and we
have consequently no definition by which we can try what a trade mark
is nor consequently what particular symbol amounts to a trade mark,
~ d ... the existing law gives no remedy against an actual pirate, but
only against the person who fraudulently uses a trade mark'.
Despite the uncertain and (at least to our modern eyes) somewhat
alien nature of the law in this area, over the second half of the
* 166-72 (CAMBRIDGE U. PRESS 1999).

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