The history of trademarks, which have become one of the most important (crucial) components of trade affairs tried to be explained in this paper. This paper contends that the modern trademarks did not just pop up abruptly but they were rather affected, in one way or another, from the signs, signatures, etc. that were used in the past and that it is these historical marks and signs that had paved the way for the modern trademarks and their current situation.
A - Introduction:
The desire of human beings to mark articles, which he/she created, had started at the very first times of its existence.
It has been argued (Shilling, 2002: 1-1) that ‘trademarks have been used for centuries-probably as long as there has been more than one person carrying out a particular trade, or selling merchandise of a particular type, at the same market, or in the same town.’ Some writers (Johnson, 2005) argue that trademarks could be seen and dated back around 5,000 years B.C., to the Bison painted walls of the Lascaux Caves in southern France. Others (Foster, F.H. – Shook, R.L.: 19 – 23) on the other hand, indicate that these ancient marks presumably were used to identify ownership rather than to serve some business function, and thus, the history of trademarks could be dated back to Mesopotamian and Egyptian Civilization. Some others (Tekinalp: 303) allege that the signs of an ancient civilization were mostly property marks and for that reason ancestors of modern trademarks were firstly seen in the twelfth century.
B – History of Trademarks:
It is relatively a recent development that trademark is considered to be a valuable piece of property and thus worthy of legal protection when compared with its history. However, it is the evolution and history of the trademark that had paved the way for its current definition, classification, and consequences.
In the following section, the evolution and types of the trademark will be explained from the very beginning by separating it into different eras.
I) Trademark in Ancient Era:
First traces of trademark had been observed between 3500 – 3200 B.C. in Mesopotamia and Egypt especially on bricks, roof tiles (brick marks), and building sites. The concerned signs were composed of factory’s, the maker’s name (sometimes, additional information such as the name of the consul or emperor, building contractor, etc.), and stamped to the appropriate places of the articles. Although it is not possible to allege that these signs bear the stamp and features of a modern trademark, they too have the most important feature of a trademark: distinctiveness. Nevertheless, the reason that lies behind the usage of those signs was a bit different: Quarry marks indicated the source of the stones used in buildings, and stonecutters' signs, which might be either painted on or carved into the stone, helped workers prove their claims to wages. (Winterfeldt, B.J.)
II) Trademark in Roman Era:
It was the Roman civilization that existed between 500 B.C. and 500 A.D., which provides the earliest documented records of an economy that used trademarks on an everyday basis. (Foster - Shook: 20)
The Romans used marks not only in their nourishment (cheese, wine, bread, etc.) but also on their bricks, tiles, building stones, pottery, amphorae, etc. Marks used on potteries were perhaps, the most dominant type seen in the Roman Civilization. It is argued (Foster - Shook: 20) that, an estimated 6.000 different Roman potter' marks have been identified and that some of these marks were quite clever and surprisingly up-to-par with today's trademarks.
Originally, marks of those times consisted of a single line of letters framed by an oblong with rounded or swallow-tailed corners. Later, one more line was added and the shape changed to a circle, semi-circle or crescent. The signatures were accompanied by an F (Fecit), O, OF (Officina), or M (Manu). (Rudofsky: 6)
III) Trademark in Dark Ages:
It is a common approach that, early medieval Europe, referred to as the “dark” age, managed to break through a number of technological barriers that had held the civilizations back. (Mokyr: 31)
The period between the fall of the Roman Empire (fifth century) through the thirteenth century is regarded as the era of illiteracy or dark ages for trademarks as there is no adequate evidence that trademarks were continued to be used in everyday life.
During this period, medieval stonemason marks were used. The masons developed a different way of communication that is to say a complicated ritual of speech and behavior. Because of the mentioned approach and conception, trademark types had changed. In this period, neither numeric nor alphabetical characters were used and symbols or inscriptions that could only be understood by a member of a specific guild were preferred instead.
IV) Printer’s Marks, Merchant’s (Police) Marks:
Although marks had started to be used by almost every merchant or craftsman (bakers, bottle makers, smiths, armorers, metalworkers, woolen and linen weavers, etc.) after the dark ages, the most important ones among them were the printers’ and merchant's marks.
After the invention of book printing, the mass production of books had become available. This development had paved the way for printers to use a mark or sign so as to distinguish their goods, that is to say, books, from other printers.
The first book to be published under the printer’s mark was the Psalterium Latinum printed in Mayence by Johann Fust and Peter Schöffer; it was also the first book to carry a publishing date: August 14, 1457. (Rudofsky: 21)
The use of guild and merchant marks also coincided with printer's marks. It could be stated that the guarantee function of a trademark could have been acquired from guild marks.
Merchants were not allowed to advertise in Europe until the French Revolution and their transactions were controlled by guilds. Each guild was entitled to set forth its own regulative rules and merchants as being members of those guilds were obliged to use guild marks on each article they produce. Because of the compulsory feature of these marks, they were also regarded as police marks.
Guilt regulation required every article produced by one of its members to bear both the guild symbol and the marks of the individual artisan. The guild’s mark let the public know that the goods were not contraband. However, it also held the artisan responsible for poor craftsmanship, and if the guild standards failed to be met, disciplinary action was in order. (Foster - Shook: 21)
The dominant position of guilds had ended with the French Revolution (1789). French Revolution abolished all the privileges that had been given to guilds and thus, the obligation to use marks ended. Despite these developments, marks continued to be used as people realized that these signs had many advantages on their sight.
C – Modern Trademarks:
The more trade transactions and firms grew and gained a multinational character, the more the need to protect the component (trademark) that distinguishes, identifies, introduces, guarantees those products had increased.
Starting with the Paris Convention for the Protection of Industrial Property (1883), plenty of international and national legislation had concluded. After the conclusion and regulation of these national and international agreements, codes, decrees, etc. the trademarks gained their current situation.
In the following section, the term "right", "intellectual property right", "trademarks and their place in the term intellectual property" will very briefly be explained so as to determine the position of the trademark in the meantime.
C.1. The Concept and Types of “Rights” and “Intellectual Property Right”:
The right is legally defined as: ‘the authority granted to natural or legal persons by the legal system.’ (Kılıçoğlu, 2002: 12)
Despite the classification of rights from different points of view (Öztan, 2002: 57-76), they might be divided into two main categories in terms of their characteristic features one of which is relative rights and the other absolute rights. In the concerned work, only the absolute rights, which are in relation to intellectual property and thus, trademarks, will be mentioned.
Absolute rights can be asserted to anyone regardless of their relation, legal connection, etc. and the owner of that right may use it as he/she wishes and has the sole authority to prevent others from using it without his/her authorization. (Öztan, B., 2002: 70)
Absolute rights are divided into two categories in terms of their subjects. "Personal rights" and "property rights". Property rights are also divided into two sub-categories that say absolute rights on tangible and intangible articles or assets.
Intellectual property rights, as being one of the absolute rights (property rights), which are acquired on intangible articles or assets, are evaluated within this frame.
C.2. Intellectual Property and Trademarks:
Intellectual Property, very broadly, means the legal rights, which result from intellectual activity in the industrial, scientific, literary, and artistic fields. (WIPO Intellectual Property Handbook: Policy, Law and Use, WIPO Publication No.489 (E) – http://www.wipo.int/about-ip/en/iprm/pdf/ch1.pdf)
In article 2 paragraph viii of “The Convention Establishing the World Intellectual Property Organization (WIPO)”, it is provided that “intellectual property” shall include the rights relating to:
– literary, artistic, and scientific works,
– performances of performing artists, phonograms, and broadcasts,
– inventions in all fields of human endeavor, – scientific discoveries,
– trademarks, service marks, and commercial names and designations,
– protection against unfair competition and all other rights resulting from intellectual activity in the industrial, scientific, literary, or artistic fields.
The term intellectual property has two different pillars one of which is related to ‘copyrights’ in which not only literary, artistic, and scientific works but also performances of performing artists, phonograms, and broadcasts that is to say ‘related or neighboring rights’ are comprised; and the other is related to ‘industrial property’ that comprises patents, designs, trademarks (also service marks), geographical indications, etc.
The following figure can be used so as to show the above-mentioned explanations:
In this respect, it could be stated that the trademark is regarded as one of the components of the industrial property.
C.3. Definition of a Trademark:
A trademark is a name, symbol, or logo design, or a combination of any or all of these, used to identify and distinguish the goods and services of one person or enterprise from another. (Burshtein, Lynn M., 2005, 62-62)
The legal definition of a trademark could be found not only in international agreements (e.g. TRIPS Agreement) but also in Turkish national legislation (6769 numbered Industrial Property Code).
It is stated in article 15 of the TRIPS Agreement (Agreement on Trade-Related Aspects of Intellectual Property Rights) that: “Any sign, or any combination of signs, capable of distinguishing the goods or services of one undertaking from those of other undertakings, shall be capable of constituting a trademark. Such signs, in particular words including personal names, letters, numerals, figurative elements and combinations of colors as well as any combination of such signs shall be eligible for registration as trademarks.”
Article 4 of Regulation (EU) 2017/1001 of The European Parliament and of The Council of 14 June 2017 on the European Union trademark states that: “An EU trademark may consist of any signs, in particular, words, including personal names, or designs, letters, numerals, colors, the shape of goods or of the packaging of goods, or sounds, provided that such signs are capable of:
(a) distinguishing the goods or services of one undertaking from those of other undertakings;
(b) being represented on the Register of European Union trademarks (‘the Register'), in a manner which enables the competent authorities and the public to determine the clear and precise subject matter of the protection afforded to its proprietor.”
The framework of the trademark is also stipulated in the 6769 numbered Industrial Property Law in Turkey. According to the first paragraph of article 4 of 6769 numbered Code: “Trademarks may consist of any signs like words, including personal names, figures, colors, letters, numbers, sounds, and the shape of goods or their packaging, provided that such signs are capable of distinguishing the goods or services of one undertaking from those of other undertakings and being represented on the register in a manner to determine the clear and precise subject matter of the protection afforded to its proprietor.”
Bearing the above-mentioned definitions in mind, it could be stated that regardless of its shape, composition, etc. the core of any modern trademark is the “sign” which generally has two main characteristics: “distinctiveness” and “not being deceptive”.
Many factors have been at play in the making of the modern world over the last two or three hundred years, but changes in technology stand at the center of all accounts, notably the Industrial Revolution which shift away from traditional agriculture and trade to the mechanization of production, the elaboration of the factory system, and the development of global market systems to industrial production (Mokyr, J., 1990, p.277). Scientific revolutions carried out within this context overturned not only the reigning theories but also carried with them significant consequences outside their respective scientific disciplines (Andersen, 2001, p.29).
The most important change and development affecting trademark law, undoubtedly, appear as the Internet has started to be intensely used. Especially after the 1990s, the development in the field of science and technology and resulting in information and communication technologies change the cultural and social structure of societies and the characteristics of commercial relationships, which are commonly applied. As one of the information and communication technologies, the Internet allows fast and cheap global access to information, which leads to a change in methods of trading and recognition of the internet as the most important means of marketing for all persons involved in trading all over the world. The worldwide usage and spread of the Internet have also made a simple regulatory issue more complex, a phenomenon that arises also in the trademark issues where global legal protection does not exist.
Needless to say, these developments shape and constitute the current structure of modern trademarks and related legal regulations therein, however, it will also be unfair to assert that the origins of the trademark should be dated back to these events.
As expressed, the core component of a trademark is the sign itself and this sign is, at the first hand, used to distinguish the goods and services of one undertaking (enterprise) from another. It is believed that so as to realize this feature, the concerned sign shall be used in the course of trade transactions, and thus, there should be a minimum piece of trade facility so as to regard a sign as a trademark.
In casting a glance through some of the archeological excavations, it was observed that artifacts (oil lamps) that were marked as ‘Fortis’ found, which dates back to the first three centuries of the Roman Empire. Lamps bearing this mark were dispersed throughout territories in present-day England, France, Germany, Holland, and Spain. These points to the possible use of the mark in a manner more closely approximating modern trademark practice. (Winterfeldt, B.J., 2002)
Thus, it can be asserted that the modern trademarks did neither pop up abruptly right after the scientific revolution nor they date back around 5,000 years B.C. but they were rather affected, in one way or another, by the signs, signatures, etc. that were used in the first centuries of the Roman Empire and that it is these historical marks and signs that had paved the way for the modern trademarks and their current situation.
- FOSTER, Frank H. – SHOOK, Robert L., (1993), Patents, Copyrights & Trademarks, U.S.A, John Wiley & Sons, Inc.
- Ord.Prof.Dr.HİRŞ, E., (1948), Fikri ve Sınai Haklar, Ankara, Ankara Basımevi
- Prof.Dr. KILIÇOĞLU, Ahmet M., (2004), Borçlar Hukuku – Genel Hükümler, 2nd Edition, Ankara
- Prof.Dr.ÖZTAN, Bilge, (2002), Medeni Hukukun Temel Kavramları, 9th Edition, Ankara
- WIPO Intellectual Property Handbook: Policy, Law and Use, WIPO Publication No.489 (E) – http://www.wipo.int/about-ip/en/iprm/pdf/ch1.pdf (accessed on September 21, 2018)
- RUDOFSKY, Bernard, (1952), Notes on Early Trademarks and Related Matters, Seven Designers Look at Trademark Design, Chicago, Paul Theobald Publisher
- SHILLING, Dana, (2002), Essentials of Trademarks and Unfair Competition, New York, John Wiley & Sons, Inc.
- Prof.Dr.TEKİNALP, Ünal, (2002), Fikri Mülkiyet Hukuku, İstanbul, Beta Basım Yayım Dağıtım A.Ş.
- Andersen, Hane, (2001), On Kuhn, Wadsworth/Thomson, USA
- Burshtein, Lynn M., Would A Band By Any Other Name Sound Just As Sweet?, Canadian Musician; May/Jun2005, Vol. 27 Issue 3, p62-62, 1p, 1bw
- Johnson, David, (2005), Trademarks - A history of a billion-dollar business, Information Please® Database, Pearson Education
- Mokyr, Joel, The Lever of Riches, Technological Creativity and Economic Progress, Oxford, Oxford University Press: 31-57
- Winterfeldt, Brian J., Historical Trademarks: in Use since . . . 4,000 B.C., INTA Bulletin Archive: March 2002
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