The History of the legal protection of marks

Surprisingly marks have been applied to goods for many centuries. The 5th edition on intellectual property Law by Bently, Sherman, Gangjee and Johnson (2018) explains the development of the protection of marks over the centuries. In the earliest times traders applied marks to their goods to indicate ownership known as ‘proprietary’ or ‘possessory’ marks. A great example being the branding of cattle and sheep by farmers to identify their live stock a method still used today.

However it’s explained under the chapter on the history of Legal protection that it wasn’t until the 16th century that the courts first began to protect marks. This was the first real acknowledgement of the fact that signs operated as an indication of source. The courts held “that if another trader were allowed to use the same sign, this would allow a fraud to be committed on the public.” This established the idea that ‘if a trader had already used a mark the deliberate use of the same mark by another trader would amount to a form of deceit.’

The book then illustrates the further development of legal protection in the 19th and 20th century. The introduction of the Trademark Registration Act 1875 established ‘passing off’, ‘goodwill’ and a system for registration of marks. In the 20th century the introduction of the Trademark act 1938 and the Trademark Act 1994 which is the current statute in the UK for mark registrability were established. Both acts altered and improved the previous statute and provided further protection to marks.

The development of trademark protection is arguably the most progressive area of law due its constant scrutiny throughout the centuries. It is remarkable that although this protection was first officially established in 1875 it is still relevant today and so effective in English Law despite the forever growing media platforms which have made the act of ‘passing off’ even easier.

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