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This chapter is from the book

The History of Trademarks

The topic of trademark legislation has been an important topic in the United States dating as far back as 1791 when Thomas Jefferson advocated trademark laws. Individual states in the United States then began to pass their own laws (i.e., Michigan in 1842 required that all timber be marked with its origin).

Federal legislation concerning trademarks did not come to pass until July of 1870 with the law on registration of trademarks. This law was soon repealed because it conflicted with Constitutional principals. In 1881, a new law was created, and in 1905, the U.S. Patent and Trademark Office was created, whereby all trademark registrations are (to this day) handled.

Trademarks and Service Marks

The symbols (R)—® or TM—™ placed near the trademark indicate that registration is either in force or pending, thus stating that unauthorized use of that mark can lead to legal consequences.

These special symbols warn people that a trademark is registered. A service mark, symbols (SM)—SM—SM, is treated in the same manner as a trademark.

The history of trademarks originates in ancient times. It has, however, been very difficult to determine the exact date when the very first trademark appeared. Although, we know that during the period, 5000 BC, people were creating pottery that had indications of the name of the ruling Chinese emperor, their name as the manufacturer, and information regarding the actual place of creation of the pottery.

When you think about trademarks and their history, consider this: hieroglyphs. As the Hellenistic author, a Greek Egyptian Horapollon, discussed in his book, "Hieroglyphica," probably in the fifth century AD, yet this book was published only in the fifteenth century. Horapollon,7 considered hieroglyphs not as elements of Egyptian language, but as ideograms conveying certain notions. Some of the hieroglyphs from Horapollon's book, for example the Phoenix bird, became a commonplace in emblematic science. As Horapollon describes, demotic script is first encountered at the beginning of the 26th dynasty, in about 660 BC. The writing signs demonstrate the connection with the hieratic script, although the exact relationship is still not yet clear. The demotic characters are more cursive (flowing and joined) and thus more similar to one another, with the result that they are more difficult to read than others. Could this have been the dawning of a trademark in its earliest form, asserting ownership?

Symbolizing and emblematizing were very popular in medieval Europe. In the fifteenth century, the military outfit was very bombastic and rich in emblematical elements: innumerable mottos abundantly decorated the hats, jackets, armors, and the horse harnesses.

Officially in England, they started marking gold and silver in 1300, when King Edward I enacted the law that prohibited jewelers to sell their gold and silver creations without a previous stamping at the Goldsmith's Hall (their office in London); those who tried to counterfeit the hallmarks were sentenced to death.

Continuing on this topic, let's explore merchant's marks—these are personal marks that existed since the beginning of the thirteenth century till the end of sixteenth. These marks were widely used by traders and merchants throughout Europe. Merchant's marks can be considered as predecessors of modern trademarks, primarily because they bore names of traders and served as a guaranty that the sold goods were of expected quality. In the fifteenth century, there appeared printer's marks, which were put on books to identify the printer. For example, the famous German printer, Johannes Gutenberg, used the mark representing a double shield, which first appeared in books published in 1462. In the sixteenth century, emblems decorated not only palaces and castles of noblemen, but also inns and taverns, hence were widely used in trade.

The earliest dated printed book known is the "Diamond Sutra," printed in China in 868 CE. It is suspected, however, that book printing may have occurred long before this date. It was in the year 1041 that movable clay type printing was first invented in China. Johannes Gutenberg later invented the printing press with replaceable wooden or metal letters in 1436 (completed by 1440).

The British Parliament adopted the first legislative act concerning trademarks in 1266 under the reign of Henry III, and according to that act, every baker (for example) had to put his or her mark on the breads that were produced.

In Great Britain, the law on registration of trademarks was later enacted on August 13, 1875. This further granted to a trademark holder a monopolistic right for his or her mark and also the right to sue those who infringe upon it. The Department of Registration of Trademarks then opened in London on January 1, 1876. The first registered trademark was the red triangle of the company, "Bass & Co.," which they put on bottles filled with ale.

Although the mark of the "Bass & Co." is still considered to be the oldest registered mark in the world, it was not the first mark among the still existing trademarks. The point here is that the law on registration of trademarks was passed in the U.S. on July 8, 1870, yet marks began registering in the five years prior to 1870.

A pennant with a slogan from the "Averill Chemical Paint Company," which represented an eagle holding in its beak a pot of paint, was the first mark registered in the U.S. However, the Law of 1870 was later repealed as contradicting to the U.S. Constitution; therefore, this first registration was consequently annulled. This new (repealed) law first appeared in 1881.

The trademark of "Pepsi Cola" was registered in 1898, and ever-since, this logo has constantly been changing. The mark has undergone several modifications in the design of typeface. The most notable of these changes occurred in 1905, 1908, and 1940. Then, in 1950, the mark appeared as an image of cap with a logo on it. This cap was then modified several times so that only a circle remained. The final image, the circle, appeared in 1996 transformed into three-dimensional image of a child's ball. Could it be that the developers of this type of symbolism are exploiting our affection for childhood memories and maybe even trying to invoke a subconscious interest?

Heraldry (coat of arms) and heraldic symbols were always in the center of attention—from old ages the displaying of heraldic symbols was seemingly a prerogative of the noble. During times of industrial revolution, there appeared corporate coats of arms, which belonged to guilds of craftsmen.

Among registered trademarks, one can still find many elements of heraldry. Sometimes companies use in their emblems such elements, which are associated with the state emblem. In Russia, for example, there are a lot of trademarks using a stylized double-headed eagle. There is an ambiguous approach to this problem: On the one hand, it is banned to use the state emblem directly; on the other hand, many directors of enterprises are willing to call up associations with state symbols. A possible solution for this dilemma could be a greater degree of stylization of the elements of the coat of arms.

At present special signs warn people that a trademark is registered. The symbols (R)—® or TM—™ placed near the trademark indicate that registration is either in force or pending, thus implying that any unauthorized use of that mark can lead to legal consequences.

In summary, the historical timelines of inventions, patents, copyrights, and trademarks extend far back into ancient history. Since the earliest of times where history can account for the creation or expression of intellectual property, we are able to identify methods of this expression, and protection of these notions of expression.

In the next chapter, we will explore exactly how ideas are formulated, and subsequently, one can begin to look at how to classify these ideas as intellectual property assets.

Footnotes

1 Refer to http://colitz.com/site/1143835/1143835.htm.

2 Making for the first mechanical escapement clocks, a foliot mechanism consists of a crossbar with a weight on either end operating in conjunction with the verge, a vertical shaft upon which the foliot sits.

3 While the design of the filament was made in 1860, it was not until 1880 when Thomas Edison teamed with Swan that an operative lighting system was achieved.

4 Although the signaling strength of a lighthouse advanced mostly during the 20th century, lighthouses have been in use as far back as 280 BC.

5 For more information, please refer to http://arl.cni.org/info/frn/copy/timeline.html#Bib.

6 Siva Vaidhyanathan is currently an assistant professor in the Department of Culture and Communication at New York University. Dr Vaidhyanathan's work is referenced throughout this chapter. For more information on Dr. Vaidhyanathan's works, please reference http://www.nyu.edu/classes/siva/.

7 HORAPOLLON, of Phaenebythis in the nome of Panopolis in Egypt, Greek grammarian, flourished in the fourth century A.D. during the reign of Theodosius I. According to Suidas, he wrote commentaries on Sophocles, Alcaeus and Homer, and a work on places consecrated to the gods. Photius (cod. 279), who calls him a dramatist as well as a grammarian, ascribes to him a history of the foundation and antiquities of Alexandria (unless this is by an Egyptian of the same name, who lived in the reign of Zeno, 474491). Under the name of Horapollon, two books on Hieroglyphics are extant, which profess to be a translation from an Egyptian original into Greek by a certain Philippus, of whom nothing is known. The inferior Greek of the translation, and the character of the additions in. the second book point to its being of late date. Though a very large proportion of the statements seem absurd and cannot be accounted for by anything known in the latest and most innovative application, there is ample evidence in both the books, in individual cases, that the tradition of the values of the hieroglyphic signs was not yet extinct in the days of their author.

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