History and Evolution of the Trademark System
First Publication Date: 7th January 2011
History of (trade)marks
Dating back to those barbarian times where majority of people could not read or write is when symbols became a logical method of letting people know, what belonged to whom? The earliest marks were that of marking of animals, so a farmer, rancher or lord could distinguish what animals belonged to whom. As commerce developed, marks began to serve a number of purposes. ‘Potters mark’ of Greek and Roman times appeared on vessels to indicate the origin, destination along with the identification of the maker. The ancient Egyptian Artifacts embraced various symbols carved on structures based on religious and superstitious reasoning. The usage of stamps on bricks by the Roman brick maker for the purpose of identification began as early as the 2nd Century BC.
One of the finest examples of both ancient and modern trademark use was the Barber’s pole which was used to indicate the location of business. In medieval England, sword manufacturers were required to use identification marks so that the defective weapons could be traced back to the producer for a possible punishment.
Eventually, use of marks became a ground to prove ownership of goods. As merchandising and trade picked up significantly during the 10th Century,’ merchants mark’ also referred to as ‘proprietary mark’ was used to prove ownership rights of goods.
As 14th and 15th centuries observed dramatic emergence of merchant and craft guilds, trademark- like symbols and logos began to appear as identification of goods and services. Gradually as Industrial Revolution sparked, guild system disintegrated into free business and thus establishing civil protection against those who replicated the mark of another.
Evolution Of Trademark Law
The dictum ‘nobody has any right to represent his goods as the goods of somebody else’ and ‘nobody has the right to pass off his goods as the goods of somebody else’ was established in the case, Southern v How, 1617, where a clothier who had gained great reputation by putting his marks on clothes made by him was used by another to deceive and make profits. The Courts thereafter followed these principles as the law. They recognized such disputes and gave remedies as ‘passing off’.
Before the enactment of a statutory law, trademarks prevailed as common law marks. The need for a law on registration of trademark and protection against infringement was recognized giving scope for the very first statutory enactment in Britain in the year 1875.
The British Trademark act of 1875 provided for a formal registration of trademark based on the fulfillment of criterion whether the Trademark distinguished the goods of the trader or not. Thus, Registration was considered prima facie evidence of ownership of a Trademark. Eventually, the Trademark act, 1875 was repealed and substituted by the Patents, Designs and Trademark Act, 1883 which included the facility to register ‘fancy words not in common use’ and ‘brands’ as new marks for the first time. This Act was further substituted by the Trademark Act, 1905. The next re-enactment was the Trademark Act, 1938.
India borrowed the British Trademark Act, 1938 and prepared the first Act on the subject as Trademark Act of 1940. Independent India molded the Trade & Merchandise Mark Act, 1958. The Act is now operative as Trademark Act, 1999 which came into force with effect from 30th day of December 1999.