Trademarks, Brands, and Competitiveness

Teresa da Silva Lopes, Paul Duguid, Teresa da Silva Lopes, Paul Duguid

• Publisher: Routledge
• Year: 2010
• ISBN:
  9781135177324
• Edition: 1
• Topic: Betriebswirtschaft
• Subtopic: Business allgemein

This book examines trademarks and brands, and their historical role in national competitive and comparative advantage and in overall economic growth. The contributors provide an historical account of the contribution of brands in consumer goods to economic growth; examine the development of trademark law, its influence on brand strategy, and reciprocally the influence of strategy on the law; and look at the building and repositioning of individual brands as example of the interplay of law and strategy.

Brands and trademarks are usually discussed from the perspective of marketing. This book draws together scholars and practitioners not only from marketing, but also from business history, law, economics, and economic history to provide a richer understanding of trade marks and competitiveness than has hitherto been available.

Part I
Trademarks and National Competitiveness

1
Reading Registrations

An Overview of 100 Years of Trademark Registrations in France, the United Kingdom, and the United States

Paul Duguid, Teresa da Silva Lopes, and John Mercer

Trademarks as we know them today are essentially a nineteenth-century creation. Undoubtedly, marks have antecedents stretching back millennia, but as nineteenth-century commentators (Upton 1860), legal historians (Schechter 1925; Sherman and Bently 1999), and business historians (Chandler 1990; Wilkins 1992) generally agree, it is only in the nineteenth century that a defensible property right in marks sufficient for the task of modern marketing emerges. Most commentators also agree that the affirmation of this property right resulted in part from legal decisions made in courts and in part from statutory law, though they differ on the significance of each. The contribution of registration is less usually noted. In an argument that should gain a sympathetic hearing from institutional economists, however, the legal historians Sherman and Bently (1999: 72) have recently helped to dismiss the conventional view that registration is of ‘little conceptual interest,’ insisting rather, on ‘the important role played by registration in determining the scope of intangible property’ more generally. Indeed, it is widely assumed that the United Kingdom had no trademark law per se until it instituted a system of registration in 1876.

In other areas of intellectual property, work on registrations, from the analyses of the early Stationers’ Register for copyright (Arber 1950) to more recent analyses of patent registrations (Khan and Sokoloff2001; Moser 2005), has been highly productive. Among other things, such studies have yielded insightful analyses of intellectual property-related activities within individual countries and of the differences in these activities between countries (Khan 2005). To date, despite their importance to modern business practices, nothing of the kind has been done for trademarks. This omission may reflect a more general neglect of trademarks in histories of intellectual property. Yet for business historians, as scholars since Chandler (1990) have recognized, it is impossible to understand large tranches of modern business activity without acknowledging the evolving contribution of trademarks and modern branding. And we would add that it seems difficult to understand the evolution of trademarks and branding practices without having some grasp of the patterns of registrations accompanying that evolution. Indeed, as we argue in the following, ignorance of cumulative registration data may have led analysts to underestimate major forces in the development of trademarking.

As it is the aim of this collection to advance the history of marks and brands, so it is the aim of this chapter to begin a very preliminary analysis of registration data and, in so doing, to indicate the potential (and the pitfalls) they hold. Although we accept that, in the long term, much of the interest in the various national and international registers will come from detailed analysis (see, for example, Helmers and Rogers, this volume), it is our goal in this chapter to present an overview, painting with a broad statistical brush a comparative picture of registration in three countries important to the history of marks: France, the United States, and the United Kingdom.

Our focus is primarily business–historical. The information collated and published by trademark agencies provides a vast yet intricate record of the ways in which firms invented, protected, and deployed their trademarks to find customers, to open markets, to gain competitive advantage, and to protect that advantage once gained. Thus, the registration data give insight not merely into trademarking itself, but also into the development of national and international competitiveness in branded goods and services. Beyond these business–historical matters, the registration data undoubtedly offer an important resource for understanding intellectual property regimes more generally. This topic, however, lies beyond the ambition of this chapter.

Of the three countries chosen, France needs little justification. Starting in 1803, it is perhaps the earliest country to have instituted a national (as opposed to a guild-based) system of trade mark registration. It was only with a law of 1857, as we note below however, that reliable registration data began to emerge. France remained, as we shall see, the dominant register of marks for another century or more, as well as a major influence on national and transnational marking practices around the world. By contrast, the United States only began registering in 1870 and the United Kingdom in 1876.¹ Although these two are, to a significant degree, laggards, the size of their economies and the range of their marking, as well as the accessibility and relative reliability of their data, make them worthy foils for historical analysis of the French data.²

Before advancing, we need to offer a caution. Neglect of trademark history aside, the registers have no doubt been ignored because of their unwieldy and often impenetrable nature. The data present anyone attempting to use them with daunting challenges. The numbers can be very large, the details very small. By the end of the nineteenth century, France, for example, was regularly registering more than 10,000 marks each year. 50 years later, it was registering 20,000 marks a year. So too, a little while after, was the United States. Much of this data, however, comprises individual and frequently one-off registrations by small firms whose ambitions outstripped their capabilities and who, for one reason or another, disappear from historical records after this brief appearance. The gross numbers, the minutiae they are built up from, and the evanescence of the vast majority of registrants can easily overwhelm the historian. Indeed, occasionally they seem to have overwhelmed the registrars themselves. The latter grappled continuously with intricate questions concerning who could register and what could be registered. In the process, and faced with unexpected deluges of registrations, they changed their practices almost without explanation and abandoned certain kinds of reporting without apology. The French, for example, published nothing until 1884, then published reliable and insightful distillations of their data until 1906, after which these useful digests disappear. The British, for their part, floundered initially under the pent up demand for marks. They did produce apparently robust reports on registration quite regularly, but these turn out to be hard to reconcile with one another. The US Patent and Trademark Office, for its part, took years to introduce a reliable system of categorization for marks, so for a long time it produced fairly reliable gross numbers (though these, too, can be hard to reconcile with one another), but very little by way of further analysis. As a consequence, in this preliminary look at these data, we have not always managed to resolve, or even explain, many discrepancies. We view the data reported here as usefully illustrative or indicative of trends, but far from dispositive or probative.³

Given the scale of the data and the growing number of national and international systems that developed almost simultaneously, this chapter is, of necessity, limited to an overview of the development of the three national systems mentioned. With some glances back and forward, we look primarily at the period years from 1860 to 1970, arguing that, within this period, a multilateral system of trademark registration developed that shaped the national and international systems in place today. We begin with a quick look at the relevant law for each country. From there, we give an account of the annual totals for each country over the period under review. The gross numbers are limited in what they can show. They, nonetheless, offer the chance to compare different countries and their appetite for marks with, as we shall see, some unexpected results.

Next, to get a little closer to the data, we look at one particular subset of the whole, the registrations for nondurable consumer goods in a set of benchmark years. We have picked this area because, as we shall show, it was the dominant sector in each of these three countries as they embarked on registration. Although its dominance diminished over time, this sector has remained highly important.⁴ Very briefly, we turn to look at some international aspects of national trademark registers before finally concluding with some comments on what our analysis shows and what further investigation might reveal.

AN OVERVIEW OF THE LAW

For the Anglo-Saxon tradition that shaped the law of the United States and the United Kingdom, rights in names were restricted until the nineteenth century by the limitations of the Statute of Monopolies (1624), cases such as Blanchard v. Hill (1742), and the decline of guilds. Systems of marking that did endure from earlier periods, such as the cutlers’ (Higgins and Tweedale 1996a) and the silversmiths’, are best understood as part of vestigial guild systems that declined in the United Kingdom from the seventeenth century. Thus, it is not surprising that in France, where the guild system survived until the revolution dissolved them in 1791, the tradition of protecting marked goods had greater continuity. So strong was that tradition that many rights dissolved in 1791 were reinstated quite quickly: cutlers and jewellers regained many of their rights in years VI and VII (1797–1799), while the law of 22 germinal year XI (1803) attacked the counterfeiting and usurpation of marks of artisans more generally. This law made registration with the local Tribunal de Commerce a precondition for prosecution, and thus established a tradition of regional registration in France. A law of April 24, 1824 extended protection from artisans to the names of businesses and places as well. Finally, French trademark law underwent a thorough revision with the law of June 23, 1857. Among other things, the new law sought the protection of French-owned names in foreign countries by establishing a principle of reciprocity to be guaranteed by treaty. Consequently, France embarked on a round of bilateral agreements, beginning with Russia in 1857, and taking in the United Kingdom in 1860 and the United States in 1869, so helping precipitate related legislation being passed soon after in the last two countries. Following the law of 1857, registration in France was still organized regionally, but a summary of all registrations was gathered annually and made available for inspection in Paris. Here, too, a register for foreign marks was opened in 1860 at the Tribunal de Commerce of the Seine. It was, however, only in 1884, with the launch of the Bulletin Officiel de la Propriété Industrielle, that the registrations and registration data were published.⁵ The law of 1857 proved as stable as it was influential. As one commentary argues, ‘although modified in 1874, 1890, and 1920, it was a law destined to last 100 years’ (Beltran, Chauveau and Galvez-Behar 2001: 91).

In the United States, trademark law first developed in individual states. New York led in 1845.⁶ But it was only with a California law of 1863 that state registration began.⁷ In 1870, federal trademark law passed, bringing with it federal registration.⁸ This was overseen by the US Patent Office, in Washington, DC, which published registered marks weekly in the Official Gazette of the United States Patent Office, and annually in its annual report from 1873.⁹

Nine years after it was passed, however, the Supreme Court declared the federal law unconstitutional.¹⁰ Attempts to amend the law or the constitution failed, but under its treaty obligations, the United States enacted law to allow registration by foreign citizens from countries with reciprocal agreements and Indian tribes, who remained the primary focus of US federal law until 1905, when new federal law embracing US citizens was enacted. In the interim, however, the Patent Office continued to register marks from US firms. The 1905 law proved more robust than its predecessor, and lead to a spike in trademark registrations (see figure 1.1), after which registrations continued at a significantly higher rate than during the legal ‘interregnum’ of 1880–1904. This law held sway until US trademark law was consolidated in the Lanham Act of 1946.¹¹

The United Kingdom, as noted, was the last of the three to enact trademark law. Registration only began in 1876, following the Trade Marks Registration Act of the previous year. Legend has it that the brewers Bass parked a dray outside the door for the week before the register opened on January 1, 1876, to ensure that its was the first name on the list.¹² Bass was not the only enthusiastic company. In its first year, the register was overwhelmed and the deadline for existing marks to be registered was twice extended. At the same time, the registration of marks from the cotton sector, which had a tradition of shared marks that had to be reconciled with the register’s purp...