Lecture 24: Early Trademark Systems

[Music] What are the origins of trademarks? Scholars of antiquity credit Early Bronze
Age potters with 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. However, an examination of the potters’
seals found on Corinthian artifacts dating to 2000 BC suggests this is a reasonable supposition. Trade and commerce between 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 trademark use really expanded with the
emergence of powerful craft guilds in the medieval period. 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. Because of a trademark’s association with
quality, they also became a source of competitive advantage in the market. Trademarks thus began to acquire something
similar to the existential “moral rights” found in later copyright statutes—for example,
the right of a creator to defend the quality, originality, and “personality” of his
or her 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. Early Trademark Cases The first reported trademark case in Anglo-American
law was once considered to be Southern v. How, which was decided in 1618. Ironically, the case did not involve a trademark,
but rather, the sale of counterfeit jewels. 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. A contemporary legal report described Sanforth’s
Case: “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,
commerce and industry have evolved into an $80 trillion a year global marketplace, a
development unimaginable to the people of Sanforth’s Case time. Nevertheless, Sanforth’s verdict – that
trademark infringement is unfair competition, and that it demands redress – still serves
as the foundation and wellspring of worldwide trademark policies and statutes today.

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