photo: Pixabay
A trade mark is commonly defined as a sign, for example a word or a logo, that functions as an indicator of commercial origin. So, if I am in the business of making cakes and biscuits, attaching my trade mark to boxes containing such products serves to inform consumers that they come from me.
Standing this essential function of trade marks, it is probably not surprising to learn that their history dates back several hundreds of centuries. Let’s find out more!
Trade marks from the Middle Ages to the 20th century
Traders and merchants have marked their goods since the early days of agriculture and commerce, whether to indicate ownership (for example, earmarked cattle) or to guarantee quality. The latter was, for example, one of the main functions performed by guilds during the Middle Ages and throughout the 1700s. Still during the Middle Ages, the Vikings produced uniquely sharp and resistant swords, all carrying the ‘trade mark’ “Ulfberht” framed by two crosses.
In the United Kingdom, the first ever trade mark statute (the Trade Mark Registration Act) was adopted in 1875. It is believed that the night before 1 January 1876, which is when trade mark applications could finally be filed, an employee of Bass Brewery, originally founded in 1777, was sent to wait outside the Patent Office to be able to file the first trade mark application the following morning. Not only is the Bass trade mark represented in the iconic painting “Un bar aux Folies Bergère” by Edouard Manet but, to celebrate its trade mark history and the fact that it is regarded as the oldest trade mark registration of modern age, in 2013 Bass Pale Ale was also rebranded “Bass Trademark No.1”.
Over time, several developments have occurred, which have contributed to shaping trade mark law as we know it today. Trade marks become objects of property and have come to encompass different functions; not just origin and quality, but also investment and indication of a certain lifestyle and values. In this sense, a trade mark reflects our current understanding of brands as being indicators of something more than just commercial origin.
Furthermore, trade mark law has been profoundly affected by progressive harmonisation at both the international and regional level. For example, in the European Union (EU), not only is it possible to register EU-wide trade marks, but also the requirements for and scope of protection of national trade marks are very similar across all EU Member States. The first ever EU directive harmonising national trade mark law was adopted in 1988, while in 1994, an EU-wide trade mark system, administered by what is today the European Union Intellectual Property Office (EUIPO) was also introduced. Achieving a single trade mark registration valid across the whole EU has been a success of the EU integration process.
Iconic and less conventional trade marks
Following the latest reform of the EU trade mark system, trade mark protection today is in principle available to any sign that is capable of indicating origin (in technical terms, a sign displaying distinctive character) and being appropriately represented.
This means that not only words and logos can be trade marks, but also colours, shapes, sounds, and patterns – just to mention a few examples – may be registered.
This said, each case is decided on its own merit. For example, did you know that the shape of a Coca-Cola bottle is protected as a trade mark in the EU, but that is not the case of the shape of Voss water bottle? Or did you know that Dior’s iconic Cannage pattern is an EU trade mark but that Birkenstock’s own pattern mark has been refused registration? Or, as another example, that the hiss of a drink can opening has been refused trade mark registration while the yell of Tarzan has been registered? Or that neither the shape of the LEGO toy bricks nor the shape of a KitKat chocolate bar are registered trade marks?
In addition, sometimes being too ‘famous’ may be a problem for a trade mark, as the risk of ‘genocide’ – that is the fact that a registered trade mark comes to be intended as the common name of a certain product – is often around the corner. Take “linoleum” as an example. Today we use this term to indicate a certain type of flooring, but did you know that it was once a registered trade mark?
Trade marks into the future
Trade mark law has come a long way since its early days and securing registration of a trade mark may serve an undertaking’s own strategic goals, including to enjoy broader protection in valuable ‘objects’, such as books and characters. For example, you can register the title of a book or the name of a character as trade marks.
In all this, like any other intellectual property (IP) right, protection under trade mark law is only possible when all relevant requirements for registration are fulfilled. A careful interpretation and application of trade mark principles, including the conditions under which a sign can be protected, is necessary for this area of IP to continue to serve its purposes to protect traders and consumers alike – now and in the future.