Trade Marks - a brief history

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The Origins of Trade Marks:

A trade mark is a type of shorthand symbol used to indicate the origin of goods. The benefits of using such a shorthand symbol as opposed to the full details of the maker or manufacturer are obvious. A mark is easier to remember and recognise, and oftentimes more practical to physically apply to the product.

Most of the earliest known trade marks on goods are associated with makers' or owners' identities. The most ancient identifiable marks (even though they may not fit contemporary definitions of trade marks) known are those reportedly found on some Transylvanian pottery pieces which date back to circa. 5000 BC. Marks similar in style to those were also evidenced centuries later throughout the ancient civilisations of Egypt, Crete, Eturia and Greece. Later, during Roman times, even more distinctive marks began to emerge - including the earliest known examples of word marks. Later still, during the Dark Ages, there was an apparent decline in the use of trade marks with the possible exception of makers' marks appearing on sword blades, particularly those of European origin. The use of trade marks became more widespread on a variety of goods from the 12th Century onwards, with printers' marks emerging from the 15th Century onwards.

By the arrival of the 16th and 17th Centuries rudimentary codes of early trade mark regulation began to emerge in Europe - most notably in Germany and France. By this stage primitive hallmarking of gold, silver and other precious metals had also evolved, albeit for the primary purpose of quality control and tracing the origin of sub-standard goods. By the late 19th Century, coinciding with the advent of the Industrial Revolution, there was a marked shift away from agricultural and cottage-based industries toward mass production. The introduction of mechanical systems combined with the rapid development of scientific and technical know-how soon led to profound changes in economic structures and the need to regulate market competition. The qualitative and quantitative standardisation of products led to the use of distinguishing signs to assist consumers in choosing their products. The trademark consequently acquired its present financial, social and commercial importance with the development of mass production, distribution and consumption.

The Development of Trade Mark Law in Ireland:

As is the case with so much early Irish legislation, an examination of the roots of trade mark law here requires reference to our historic connections with, and inheritances from, the equivalent British system. Despite an abortive attempt 1862 to introduce legislation on trade marks, it was not until the Trade Marks Registration Act of 1875 that trade marks were given statutory recognition by the British Parliament as assignable and transmissible property. In addition to recognising a statutory right of property in a registered trade mark, the 1875 Act also established the Trade Mark Registry and conferred a right to sue for infringement of a registered mark. Until the introduction of the 1875 Act, trade mark law as such scarcely existed in this country with most such disputes being decided in the Civil Courts under the tenets of fraud, deceit, misrepresentation and forgery. After 1875, although governed by the British Statute, there was still no Patent Registry or equivalent administrative machinery here to deal with indigenous intellectual property issues. However, this was to change shortly after the establishment of the Irish Free State when, in 1927, the Industrial and Commercial Property (Protection) Act came into being.

The land mark significance of the new legislation did not go unnoticed during its passage through the Houses of the Oireachtas when, for example, in delivering the Bill's second reading in the Seanad (24/2/1927), Senator Brown noted that the Bill was 'probably the most complicated, as well as the most technical, that has yet appeared before this house.' This was particularly true because the Act not only dealt with trade marks, but also patents and industrial designs. The 1927 Act was further complicated by the need to cater for transitional arrangements retrospectively since the foundation of the Free State in 1921. The first trade mark registered in Ireland under the 1927 Act was 'Deanta I nEireann' (pictured across) and was registered by the Irish Industrial Development Association.

The Industrial and Commercial Property (Protection) Act 1927 (as amended) remained the sole statutory regulator of trade mark law in Ireland and served its purpose with distinction until 1964 when the new Trade Marks Act, 1963 came into effect on April 1st. The purpose of the new Act was to update the existing law in an effort to ensure that it was better adapted to fulfil the needs of traders under changing commercial conditions. The 1963 Act also had regard for the revised International Convention for the Protection of Industrial Property (1958) and most importantly, separated trade mark law from patents, industrial designs and copyright. The first trade mark registered under the 1963 Act was 'EMPRESS' a word mark owned by a mattress manufacturer.

Trade mark law in Ireland was to remain relatively unchanged until the current Act was introduced on July 1st, 1996. Apart from generally modernising trade mark legislation, the new Act enabled the State to fulfil its obligations under EU law. The substantive provisions regarding types of marks registerable, grounds upon which to oppose and seek rectification, scope of protection, user requirements, and the concept of acquiescence were all requirements under Council Directive 89/104/99. The 1996 Act also signalled the introduction of registration for service and collective marks for the first time. The first mark registered under the Act was a word mark 'CIRRUS', which related to automated teller machine services.