The Brand and Its History

Trademarks, Branding and National Identity

Patricio Sáiz, Rafael Castro, Patricio Sáiz, Rafael Castro

• Publisher: Routledge
• Year: 2022
• Print ISBN: 9781032187334
• eBook ISBN: 9781000549386
• Topic: Business
• Subtopic: Business General
• Index: Business

This book delves into the origins and evolution of trademark and branding practices in a wide range of geographical areas and periods, providing key knowledge for academics, professionals, and general audiences on the complex world of brands.

The volume compiles the work of twenty-five prominent worldwide scholars studying the origins and evolution of trademarks and branding practices from medieval times to present days and from distinct European countries to the USA, New Zealand, Canada, Latin America, and the Soviet Union. The first part of the book provides new insights on pre-modern craft marks, on the emergence of trademark legal regimes during the nineteenth century, and on the evolution of trademark and business strategies in distinct regions, sectors, and contexts. As industrialisation and globalisation spread during the twentieth century, trademarking led to modern branding and international marketing, a process driven by new economic, but also cultural factors. The second part of the book explores the cultural side of the brand and offers challenging studies on how luxury, fashion, culture associations, and the consolidation of national identities played a key role in nowadays branding.

This edited volume will not only be of great value to scholars, students and policymakers interested in trademark/branding research, but to marketing and legal practitioners as well, aiming to delve into the origins of modern brand strategies.

The chapters in this book were originally published as two special issues of the journal, Business History.

Part I
Trademarks and Branding

INTRODUCTION
Trademarks in branding: Legal issues and commercial practices

Patricio Sáiz and Rafael Castro

ABSTRACT

The call for a special symposium on ‘The Brand and Its History’ has led to two journal issues that focus on trademarks and brands, respectively. This issue is devoted to trademarks, the more concrete, well-documented, and measurable aspect of brands. This editorial introduces trademark studies; summarises previous contributions from economic, legal, business, and historical literature; provides a short overview of the topics and findings of the seven articles included in this issue; and reflects on further research.

‘The history of modern brands is to a significant degree dependent on the history of trademarks.’¹

Introduction

After a multidisciplinary research seminar and an international conference session, titled ‘The Brand and Its History: Economic, Business, and Social Value’, held in Madrid in 2014,² our proposition for a Business History special issue was approved by the editorial board in June 2015, and the call for papers was published in September.³ Over the next 10 months, nearly 30 proposals in various stages of completion poured into our in-boxes, exceeding our expectations and demonstrating the growing interest in brands and trademarks from business historians and other field-related scholars. Several proposals were not fully developed or were only laterally linked to the project, but 20 of these papers made the first-round adjudication before June 2016. Thorough peer reviews took place over the course of a year, after which 14 papers made the final selection. Our call had grown into a two-issue symposium. We thank all the scholars who submitted papers and showed such interest in this topic.

From the variety of topics received, two distinct but clearly related research lines emerged, leading to these two special issues: this one, focused on brand’s legal and practical issues; that is, the trademark; and the other, on cross-cultural factors in international branding. Although trademarks and brands are usually studied jointly and may certainly have blurred borders, they also carry distinct phenomena. Indeed, trademarks are the more concrete, well-documented, and measurable aspect of brands. Historically, trademarks emerged before modern branding as a way of connecting goods to their producers; signalling origins, quality, or related properties; and differentiating similar products on the market. Thus, trademarks were usually registered and authorised, first locally and then nationally or internationally, in case of legal actions and the need to defend rights. Brands are more complex phenomena that may be built from registered trademarks or firms’ names, but they can also emerge from unregistered symbols; firm practices; or distinct processes that emotionally connect producers’ values and reputations to consumers’ feelings, creating symbiotic, usually enduring, and—nowadays—transnational relationships. In such a process, advertising, marketing, fashion, and socio-cultural factors may play crucial roles.⁴

This first special issue is devoted to trademarks, and comprises seven articles related to legal issues and commercial practices in distinct periods and countries. The following sections summarise trademark-related research topics, highlight contributors’ findings, and suggest further research paths.

An overview of academic research on trademarks

Trademarks and brands can be studied together as related entrepreneurial processes and, therefore, there are key works and common literature in both fields. Notwithstanding this, the purpose of this special issue is to highlight specific research on trademarks as the more tangible aspect of the brand. In fact, trademarks have been mainly studied in four fields: economics, legal research, business studies, and business history.

Economics, law, and business studies

As with many aspects related to intellectual property rights (IPRs), with very few exceptions, trademarks did not capture economists’ attention until the late 1980s and early 1990s. The earliest attention was by Andreas Papandreou in 1956, who, in a simple manner, inquired into the economic effects of trademarks and their monopolistic character.⁵ Two decades later, an interesting but largely unnoticed work by Surendra Patel appeared on the political economy of trademarks from the field of development economics. In 1979, Patel, an economist and director of the Technology division of the United Nations Conference on Trade and Development, edited a remarkable special issue of World Development that focused on the trademark system in developing countries.⁶ Especially concerned with the hundreds of thousands of foreign-owned trademarks of all classes of consumer goods, including pharmaceutical products, contributors to that special issue provided analyses and discussions on the role of trademarks in international economics, their use by corporations, their distinct economic effects on First and Third Worlds, and on related legal issues.⁷

Despite these interesting analyses, trademarks as a field was not established for eight more years, until 1987, by the Chicago school of economics, not least owing to the influential work of William Landes and Richard Posner.⁸ George Akerlof had previously written on trademark/brands’ relevant roles in counteracting the effects of quality uncertainty in the markets,⁹ and Landes and Posner continued from that point. The theory was that trademarks are informational for consumers and markets, and, therefore, trademark laws would promote economic efficiency. However, in a certain sense, economic theory has traditionally considered trademarks as the ugly duckling of IPRs. From economics of information and signalling to property rights and transaction cost theories, trademarks have been always analysed as private goods or as idiosyncratic investments and quality indicators, hardly related to innovation or creation processes and far from public goods theory. Therefore, trademarks have held little interest in comparison to patents and copyright.¹⁰ Few theoretical developments have occurred since 1987, and those that have generally are within the same framework.¹¹ Even revisionists who swim against the tide on the economics of IPRs, such as Michele Boldrin and David Levine, exclude trademarks because they are ‘different in nature than patents and copyrights’.¹²

Only recently have a few scholars who are specialists both in economics and law, such as David Barnes, claimed that trademarks can be analysed as impure public goods with simultaneous rivalrous and nonrivalrous uses by suppliers and consumers. Such ‘referential use’ of trademarks by consumers means that there could be market failures and nonoptimal production/use of trademarks that related laws usually do not address. This means that, as with patents and copyright issues, more government intervention may be required to provide an optimal amount of information about products and their sources.¹³ Although this newer approach has links with the economics of IPRs, the neoclassical view of trademarks has nevertheless prevailed.¹⁴ Trademarks are normally treated as private goods that reduce search costs and ensure quality, although the growth of branding has also led to new economic functions, such as the protection of intangible outputs (meanings, identity, or status),¹⁵ which may introduce other theoretical frameworks and perspectives, such as those from behavioural economics.¹⁶

Private property rights have also been a guideline for a key field in trademark studies: legal research. In fact, IPR practitioners and law scholars were among the first to be interested in trademarking, for two obvious reasons: (1) the analysis of legislation and its evolution can shed light on its effects on business and commercial practices; and (2) there are few better ways to understand the actual work of an institution than through case laws and court precedents. An understanding of these two can lead to new legal proposals that can improve, modify, or even abolish laws or parts of them under certain circumstances.¹⁷ These reasons are behind the first contributions of trademark practitioners, attorneys, and law scholars published in specialised periodicals (such as the Journal of the Patent Office Society and the Trademark Reporter) as well as in academic law journals between the 1960s and 1980s.¹⁸

The influence of economics, and especially of the Chicago school, on trademark research was rapidly extended in studies by legal scholars. Certainly, the search-costs, procompetitive use, and economic-efficiency theories of trademarks have impacted law doctrines and still have strong advocates.¹⁹ Nevertheless, starting in the mid-1990s, legal scholars began to question, qualify, and criticise such dominant accounts; to highlight trademarks’ monopolistic side,²⁰ and enforcement costs²¹; and to note other trademark uses and abuses that influenced trademark doctrines.²² Moreover, certain scholars claim that trademark laws were never specifically designed to protect consumers or encourage information availability in the markets, but were to protect producers from illegitimate copies of their products.²³ These scholars consider that the dominant economic approach to trademarks is overrated, and call for new theories.²⁴ This criticism has led to scholars exploring new aspects of trademarks,...

Table of contents

• Cover
• Half-Title Page
• Title Page
• Copyright Page
• Contents
• Citation Information
• Notes on Contributors
• Preface
• Part I Trademarks and Branding
• Part II Branding, Culture, and National Identity
• Index