The origin of trademarks is a very much debated matter. The first research to be made from the historical point of view aims at tracing back whether or not trademarks were acknowledged by the laws of the Roman Empire. There is no doubt about it, as we have found undeniable evidence on the objects of that time brought to light by the excavations of the Roman antiquities. Many of these objects bear the name of their creator and this shows that it was common practice at that time – especially for craftsmen –to imprint their full name or simply their initials on their products. Together with the name, small pictures, signs, animals or symbols were represented. In particular, in the Roman Empire trademarks were made for both public and commercial needs: lex Cornelia punished the use of fake distinctive signs from the public law standpoint, so in relation with the use made by the consumer.
Thus, even in the old times people felt the need to distinguish with different names things belonging to each person, especially when the rudimentary simplicity of the industrial processing made the likelihood of confusion very probable among the same type of products. However, it was only in the Middle Ages that the trademark applied to the industry and trade objects, even though keeping its feature of distinctive sign given by the need, also got an informal significance and took on a real social function. The corporations charters and the authoritative acts of Communes first, and of absolute States later, outlined a wide range of models which can be led back to three fundamental kinds.
The first one is the collective and compulsory trademark, which was the same for all people belonging to each art group and was conferred by guild members, once it had been checked that the product met all technical requirements given by the guild for its making. Therefore, it was a mark granted in the interest of the guild with a guarantee and quality function.
The second kind, which was very similar to the first one, is the individual and compulsory trademark, used by the single craftsman but in the interest of the whole guild, with the purpose to allow a clear attribution of each product to its manufacturer. As a result, the monopoly on art became effective and it also made it possible to identify the guilty person (and the related punishment) when the product was faulty or in contrast with the art group provisions.
The third kind, which was very different from the previous ones, is the individual discretionary mark, used by the craftsman beyond the guild’s interests, in order to allow the public to identify the products he/she made. It was a sign with the (private) function to indicate the origin of the product and therefore conveying a clear-cut competitiveness. In a craft production system, where products of the same kind can be very different in quality from manufacturer to manufacturer, having the chance to specify to the consumer that products came from a certain workshop and had been made by a specific craftsman was a very important weapon for the most famous and skilled ones against competitors in the same field. In fact, the indication of origin is an indirect but certain quality guarantee.
In those systems where guilds were provided with extensive powers, the most thoroughly regulated and widespread marks were the first two kinds, that is why they were called guild marks, because they bore the exact function to protect the guild’s interests. On the other hand, in those systems where guilds had a rather minor role or none, it was the individual discretionary mark to become more widespread and take a broader regulation. Thus, it was clear why guild marks gained greater importance and circulation in continental Europe from the Medieval Communes Age to the French Revolution – the historical event marking the fall of the guilds – and then also why the individual discretionary marks reached bigger relevance starting from the Nineteenth century. In fact, at this time, the sale of generic products offered to consumers with no distinctive signs survived basically only in limited fields, like fresh food or raw materials. In all other fields, the employment of marks to indicate the origin of the products first, then also of services, followed an increasing trend.
In particular, the success of the commercial distribution, due to mass production and transport network’s improvement, increased the physical and logistic distance between production and purchasing centers. The workshop disappeared and in the new order the trademark was given the crucial task to recreate, with the help of advertisement, the contact between the producer and the consumer whose original form had meanwhile faded away. It’s not surprising that throughout the Nineteenth century the trademark has become a key tool for market competition, considering its strong consistency with the statement of economic liberalism. Indeed, all modern laws about distinctive signs have the aim of promoting the best functioning of market mechanisms: in the consumers’ perspective by giving support to find their favorite products, in that of the economic system by rewarding efficient producers and marginalizing the inefficient ones.
This article was also published on CyberLaws.
