A Brief History of Trademarks

Potters marks appear in various artifacts dating back to at least ancient Greece, and appear to be designed to identify the maker of various pottery items.  However, these pottery marks do not appear to be trademarks in the modern sense of the word.  Marks on various Roman artifacts suggest that trademarks may have been in use in ancient Rome.

Beginning in the Middle Ages, various guilds began to require their members to affix marks to goods produced by the members. These marks had many of the characteristics of modern marks in that they served to guarantee the quality of the goods as well as identify the manufacturer as a member of a particular guild. However, these marks were affixed to benefit the guilds, rather than the producer.

Trademark Original SymbolDuring the latter portion of the Middle Ages, laws began to develop to allow enforcement of marks.  These laws grew out of forgery, counterfeiting, and fraud laws, and were criminal in nature.  Civil protection was gradually added.

In 1803, France passed the “Factory, Manufacture and Workplace Act” which criminalized the act of passing off another’s seal as one’s own, as well as abusing the name of others or wrongfully using the name of production areas. Later, in 1857, France instituted the first comprehensive trademark system with the “Manufacture and Goods Mark Act.”  This act setup a trademark deposit system that recognized both use-based and examination based trademark registration. This law continued in France in various forms until 1964, when it was repealed and replaced with France’s modern trademark system.

England did not establish a comprehensive trademark system until 1905, trailing France by nearly 50 years. However, in 1862, England passed the “Merchandise Marks Act,” which made it illegal to deal in products with deceptive indications.England also passed the “Trade Mark Registration Act” in 1875, which established a system to register trademarks.

Trademark Mold SymbolIn 1938, England established the first registration based on “intent-to-use.” In addition, England shifted to an examination based trademark registration system, and established an application publishing procedure. At the time, England had the most advanced trademark system in the world, and the 1938 Trademark Act served as the inspiration for most modern system, including the United States.

The first Federal statute dealing with trademarks in the United States was passed in 1870. However, the Supreme Court struck this statute down as exceeding the powers granted to Congress by the Copyright Clause. Congress responded by passing the Trade Mark Act of 1881 based on the Commerce Clause, which passed Constitutional scrutiny.

Trademark SymbolIn 1946, Congress passed the Lanham Act, which continues to rule trademark issues today.  In 1995, Congress passed the Federal Trademark Dilution Act, which protects “famous” marks from uses that would dilute their distinctiveness. More recently, Congress enacted the Anticybersquatting Consumer Protection Act to prevent predatory registration of domain names corresponding to famous marks.

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