- Historic Sites
Marks For The Marketplace
The Curious World of the Trademark
October 1977 | Volume 28, Issue 6
It is small wonder, then, that the statistics of trademark registrations are impressive. The total issued in the United States alone stands at 1,067,920, with about half a million marks on the active register. In 1976, the last year for which figures are available, 40,117 applications were filed and 29,208 registrations issued.
Distinctive marks as indicia of ownership appear in the famous cave paintings of southwestern Europe, where cattle are shown with brand marks on their flanks, and pottery four thousand years old has been found around the Mediterranean littoral with the maker’s emblem on the handle. In the Middle Ages merchant marks were placed upon pewter, cloth, gold and silver articles, even baker’s bread, not as a right of the seller but as a liability imposed upon the merchant or guild to protect the buyer against fraud. Justice could be summary. In the Palatinate in the fourteenth century an innkeeper was hanged for passing off cheap wine as R’fcdesheimer.
It was recognized that the marks were of prime economic importance to the maker or seller, and many fanciful house marks incorporating animals, hearts, seals, Christian symbols, initials, and cyphers came to be used by rich merchants as a kind of bourgeois heraldry, then evolved into coats of arms when the traders became gentlemen. Some of these symbols of trade may still be seen in the brasses and stained-glass windows of ancient colleges, abbeys, and cathedrals of England and Europe.
But it was not until producer and consumer were no longer in close contact, that is to say, not until about the middle of the nineteenth century when mass production and distribution of consumer goods made a merchandising shortcut imperativethat the use and true value of trademarks were fully appreciated, although trademark protection in England was first enacted into law in 1783. In the United States a statute providing for the registration of marks was passed in 1870 and revised in 1876, but was struck down three years later by the Supreme Court as being unconstitutional. A new law was enacted in 1881, replaced by others in 1905,1920, and 1946. Under them, trademarks assumed their modern function as a form of “commercial magnetism,” in Justice Felix Frankfurter’s phrase, to draw customers to the article or commodity upon which the “congenial symbol” appears.
Today famous brand names are part of the American vernacular. We know them, too, by their visual images. They are like old friends: Leo, the MGM lion, White Rock’s Psyche, the bearded Smith Brothers of cough-drop fame, American Telephone and Telegraph’s bell, Prudential’s Rock of Gibraltar, and Planters’ Mr. Peanut, that vivacious, swaggering, top-hatted figure that jaunty boulevardier with monocle and cane who, because of the whirligig of national politics, now enjoys the prestige of association with the White House. Goobers are so definitely “in” that an enterprising entrepreneur of Plains, Georgia, began peddling bottles of peanut soil for five dollars, and peanut soup became the soupe du jour every Wednesday at Washington’s luxury hotel, the Sheraton-Carlton.
A trademark may be a coined word (Kleenex), a family name (Schlitz), the mark of a service (Greyhound); it may even be suggestive, provided it is not descriptive (Coppertone). The suggestive mark hints fancifully of a desirable characteristic of the product but does not describe it: a “Mallard” raincoat reminds one of how a duck sheds water. The idea for a trademark may come from almost anywhere—from a scientific survey, an employee contest, a “think tank,” a brainstorming session, an encyclopedia, a sudden inspiration. A computer came up with the name for the world’s largest oil company-Exxon. The double x is especially helpful since it is a combination found only in the Maltese language and a few English surnames.
“You need a name,” said a paper-box manufacturer in a meeting with executives of a baking company many years ago when packaged, trademarked, nationally advertised food products were still a novelty in this country.
“You needa… Uneeda Biscuit!” Henry N. McKinney, an advertising man who had already christened Keds, Karo, and Meadow Gold Butter, is credited with saying. Thus suddenly a historic brand name came into existence.
Or take, as another example, the case of a small company in St. Paul whose principal product was sandpaper. In 1925 little Minnesota Mining and Manufacturing (3M) addressed itself to a big problem of the Detroit automobile giants. Two-tone body finishes were the hot news in car styling, made possible by the invention of quick-drying lacquers and automatic spray guns. But the automobile factories could not get a sharp edge where the colors met.
Something was needed that would stick and hold, seal off paint solvents, yet come off easily. It seemed that 3M had the answer a two-inch-wide masking tape backed, along both edges, with a narrow strip of adhesive. The adhesive was only a quarter of an inch wide. This appealed to the 3M management because it lowered production costs to omit the stickum on the middle part of the tape. One edge of the tape was applied to the car body, the other gripped the masking paper. But the tape failed to hold. A wrathy foreman of a paint shop turned on a 3M salesman and said: “Take this tape back to your stingy Scotch bosses and tell them to put more adhesive on it.”