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Article February 10, 2016

A Brief History of the Trademark

Trademarks have a venerable history that reaches back far further than that of patents or copyrights; indeed, marks used to distinguish goods have been around for pretty much as long as tradeable goods themselves have.

Archaeological findings indicate that our prehistoric ancestors began applying special marks to their pottery to distinguish their origin more than seven-thousand years ago. Later, in the middle ages, craftsman’s’ guilds applied marks to show that goods met the standards applied by the guilds, standards which included the goods price. The marks were obligatory and intended to help consumers identify the party responsible for faulty goods.

As the industrial revolution gathered pace in the 18th century, the gap between the utility and market value of goods began to widen, a burgeoning middle class began to use purchases to affirm their identity, and conspicuous consumption, once the province of aristocrats and royalty alone, became a mass phenomenon. It was in this era that the modern Trademark began to take form. Marks such as “Imperial Leather” and “Twinings Tea” became more than a simple denotation of origin, the names conveyed values and ideas that the middle class consumer felt they were buying a piece of.

The law was somewhat slow to adapt to the changing commercial landscape and provide proper recognition of the trademark. Common law actions to protect one’s “brand” were available as early as the 16th century through “tort of passing off”. The tort allowed claimants to sue in situations where a third party was attempting to ride off the back of their established reputation or “goodwill”; however it conveyed no legally recognised monopoly, nor did it establish a property right.

It was not until 1875 that the UK passed the Trade Marks Registration Act, which allowed the formal registration of trademarks, and even this was fairly restrictive. The act was highly prescriptive when it came to defining what was eligible for registration, only allowing: “a device, or mark, or name of an individual or firm printed in some particular and distinctive manner; or a written signature or copy of a written signature of an individual or firm; or a distinctive label or ticket”. This was later amended by the 1883 Patents and Trademarks Act, which allowed the registration of “fancy words not in common use” and “brands” for the first time. Modern UK Trademark law reflects the European Trademarks Directive, implemented into national law in the Trademarks Act of 1994. The directive was intended to harmonise Trademark law across the European Union and so encourage trade between member states.

As the trademark has evolved, government and courts have had to strike a balance between the rights of the proprietor and the need to encourage free trade. The requirements for registering a trademark, particularly with regards to distinctiveness, remain hotly contested. As evidenced in the recent KitKat ruling, even the scope of what is “trademark-able” remains a vexed question.