Trademarks: A History

You put on a Lacoste shirt, L.L. Bean pants, get into your Ford, and drive to a Marriott Hotel, where you drink a Coca-Cola. Brand names, the name of a specific product, are everywhere. Each day every American uses dozens. At times it might seem we are literally surrounded with brand names.

The use of markings to establish who owns, or who made, a certain product appears to be ancient. Bison painted on the walls of the Lascaux Caves in southern France contain marks that scholars say indicate ownership. The paintings were made around 5,000 years B.C.

Stone seals dating to 3,500 B.C. have been found in the Middle East. The seals were used to indicate who made certain items. The ancient Egyptians, Greeks, Romans, and Chinese all used various forms of stamps or markings to indicate who made certain things, such as pottery or bricks. Not only did the marks indicate quality, but they also let people know whom to blame if there was a problem with the product.

During the Middle Ages, European trade guilds began using marks to indicate who made a specific product. Bell makers were among the first to adopt the practice, followed by other manufacturers including paper makers. They added watermarks so people would know who made that particular sheet.

In 1266, the Bakers Marking Law, which governed the use of stamps or pinpricks on loaves of bread, was passed in England. It is one of the earliest known laws on trademarks. Silversmiths were required to mark their products in 1363.

Bottle makers and porcelain manufacturers also followed suit, possibly influenced by Chinese porcelain, which bore markings indicating its origin.

One of the earliest court cases involving the improper use of a trademark occurred in England in 1618. The manufacturer of high-quality cloth sued a competitor who produced lower-quality cloth, but used the marking reserved for top-quality cloth. The case, Southern v. How, is considered the first case of actual trademark infringement.

In 1751 Parisian furniture makers were required to sign their work with marks.

In the U.S., Thomas Jefferson urged the adoption laws governing trademarks because of a dispute over sail cloth marks in 1791. While federal legislation was not forthcoming, some states passed their own laws. For instance, Michigan required marks to indicate the origin of timber in 1842.

Federal trademark legislation was passed in 1870. Averill Paints received a trademark under this law in 1870, making it the first modern trademark issued in the U.S.

Since then, a huge body of law has developed around trademarks and patents. The number of trademarked items has skyrocketed. The Brand Names Education Foundation (BNEF) estimates that the average supermarket carries 45,000 separate items, most of which are brand names. This figure is up from 12,000 to 15,000 items only 10 years ago, an indication of the explosive growth in brand names.

Everything it seems can be a trademark, including such three-dimensional objects as the McDonald's arches. NBC has a trademark of musical notes representing the network, while Owens Corning has registered pink insulation. It's all part of protecting a product that a business has worked hard to create.

The use of brand names, which are registered with the government, have become an important part of business. Non-brand names, known as "generic" products, are usually less expensive. Yet brand names remain popular because they offer a guarantee of quality that generic products often cannot match.

Some common household words—aspirin, cellophane, nylon, thermos, escalator—all started out as names for specific products but gradually became so common that they became generic names.

Companies are also very protective of their brands. Imitations, or counterfeits, known as "knockoffs" are widespread. The BNEF estimates that counterfeiting is a $60 billion industry worldwide, costing legitimate manufacturers 130,000 jobs annually.

The U.S. Patent and Trademark Office, a branch of the Department of Commerce, keeps track of patent law. Currently, more than 2.3 million separate patents are in existence.