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Sunday, 22 January 2017

When this Kat doesn't know, he reaches out to Kat readers: what really happened at the dawn of modern commercial trademark use?

There are times when this Kat encounters an IP question, but finds himself unable to fashion a suitable response and so he reaches out to the IPKat community for assistance. This is one of those instances.

It is sometimes said that trademarks came into commercial use (and trademark law followed thereafter), when persons seeking to acquire goods no longer did so from a single, fixed physical source. If the goods came only from a single locus, there was no need to mark the goods, because everyone was aware of their source. Gradually, however, goods were sourced from other than this physical locus, and from a person other than the person associated with this physical locus, with the result that the notion of the source of the goods no longer could convey this unitary meaning. When this began to happen, marks came into popular use as the symbolic representation of such source. While the marking of goods has been present in specific situations over centuries and even millennia, it was only when modern commerce began to take form that the wide-spread use of marks took root.

Having said this, how true is this assertion? While there can be no doubt that the world moved from a time when there was virtually no use of marks for commercial purposes to their ever-expanding commercial adoption, this Kat has been unable to find scholarly research that explains this development. What happened in the 17th century, the 18th century and thereafter in this respect? This Kat thinks about the studies that have illuminated the development of the book industry in the West following the invention of the printing press (see, e.g., the notable book by Adrian Johns, The Nature of the Book: Print and Knowledge in the Making). In Johns’ own words --
“…the cauldron of creative and commercial forces in which print culture was formed, …allow[ing] us to visit booksellers’ shops and the Royal Society, paper manufactories and type foundries. We can eavesdrop on the often-bitter disputes between authors and printers, printers and booksellers, clerics and intellectuals as they debate and resolve the meaning and rights attached to the creation of ideas, their appearance in written form and then in print, and the opportunity to sell, buy, and read printed work.”
This Kat is looking for studies about trademarks that provide a similar window through which to understand the rise of the commercial use of signs. He realizes that the subject-matter of the development of print is much less diffuse than seeking to explain how commercial marks came into popular use. That said, without an appreciation of how this came about, our understanding of trademarks and trademark law is incomplete. In this vein, this Kat can already think of the following questions:
1. How did people provide for their necessities at the dawn of the modern world?

2. Was this all done in a self- subsistence manner, or were any of these “goods” acquired from third parties?

3. Indeed, was there such a notion of “goods” or “products”?

4. Was there such a thing as a “store” or other place where one acquired "goods"?

5. How did the market day(s) play a role?

6. How much of this trade took place via barter?

7. How were the differences in this regard between what happened in a village versus in a more urban setting?

8. Except for guild signs, was there such a thing as marks in use during that time?

9. Where and when exactly did commercial signs begin to take hold?

10. Can we trace the expansion of their use?

11. How did the increase in general literacy impact on these developments?
These are only some of the questions that have occupied this Kat for some time. If Kat readers have any suggestions where to look for answers, this Kat would be most grateful.


Anonymous said...

Have you looked at "The Historical Foundations of the Law Relating to Trade-Marks" by Frank Schechter (the "father" of trade mark dilution)? It gives a quite detailed description of the evolution of (trade) marks from medieval to modern times.

Andy said...

Hi Neil,

I suspect that another fruitful avenue of research might be to look at the use of symbolic and pictorial signs in earlier times, when most of the population was illiterate, so for instance three balls to denote a pawnbroker, or a red and white striped pole for a barber.

And according to Wikipedia the use of signs outside English pubs was mandated by law as long ago as 1393.

I can't help thinking that such signs were the natural precursors to the indication of origin which trade marks serve as today.

Kant said...

An early mark?

Anonymous said...

I am left wondering if this has anything to do with the US Tam case....

Anonimo said...

Marks were widely used in Ancient Rome. There is a nice exhibition showing right now in Rome:
Legal remedies of various sorts were also available. These remedies were the basis for Middle Age commentators developments.

François GRIESMAR said...

Dear Neil,

If you are interested, I can e-mail you scanned copies of 2 French 18th documents (1762 and around 1780) reproducing Merchants' Trademarks with some comments.

Yours Sincerely,

Siglex France & Siglex Suisse Sàrl

François GRIESMAR said...

Dear Neil,

If you are interested, I can e-mail you the scanned copies of 2 French documents from the 18th Century (1762 & around 1780) reproducing Merchants' trademarks with some comments.

Yours Sincerely,

Siglex France & Siglex Suisse Sàrl

François GRIESMAR said...

Dear Neil,

Although I suppose you already heard of this book, I believe Salvatore Di Palma's recent book "The History of Marks from Antiquity to the Middle Ages" would be of real interest.

Yours sincerely,

Neil Wilkof said...

Thanks to all of you who have suggested (or may yet suggest) sources for further reading.

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