Chapter 5: Trade Marks and Related Rights
5.1 INTRODUCTION Trade marks have a long history.1 In prehistoric times farmers would brand cattle and implements as a mark of their ownership. Similarly, early merchants used personal marks on goods, to indicate ownership. Later these marks came to be used as true trade marks, to indicate origin. As trade expanded beyond purely local markets, the value of such marks to both traders and purchasers was increasingly appreciated, and legally enforced penalties began to be imposed for abuses. By the sixteenth century, some countries (Britain, France and Germany, for example) had adopted recognisable systems of trade mark law. As industrialisation took hold, traders continued to apply marks to their manufactured goods, and began to use their marks in advertising. Purchasers in turn began to rely on marks to indicate the producer of the goods, and thus to offer some security as to their quality. This process of development continued, and by the early twentieth century some marks began to embody an allure or emotional appeal to the consumer. Thus the mark itself acquired an advertising function, and began to function as a symbol rather than a signal. Whereas the earlier function of the mark was to indicate origin, often thereby providing some guarantee of quality, the mark now gave the product its identity.2 Reinforced by advertising, the trade mark could evoke the product’s broader attributes and make it desirable to the consumer. This poetic function went far beyond the prosaic aims of identifying a product’s manufacturer or its likely quality....
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