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“Forgotten Heroes and Forgotten Issues”: Business and Trademark History during the Nineteenth Century

Published online by Cambridge University Press:  11 September 2012

Abstract

This reassessment of the importance of trademarks in business during the nineteenth and early twentieth centuries reveals that the focus by business historians on the beverage and processed-foodstuff industries has resulted in comparative neglect of the textile and metal-fabrication industries. The trademark histories of the latter two show that they followed their own paths, which resulted in their adopting three solutions to trademark issues that differed sharply from the approaches taken by the former two. The textile and metalfabrication sectors participated heavily in the evolution of an international regime to protect intellectual property; featured prominently in the development of patents in trademarks and trade names; and devised unique institutional solutions to the emerging problem of conflicting private marks in the Lancashire cotton-textile and Sheffield edge-tool industries. The history of these two industries indicates that trademark protection was not sufficient to ensure international competitiveness and long-run survival.

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Articles
Copyright
Copyright © The President and Fellows of Harvard College 2012

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References

The author wishes to thank Christopher Beauchamp, Paul Duguid, Dev Gangjee, Teresa da Silva Lopes, Christopher Price, and the business and patents office, Leeds Central Library. Particular thanks are due to Geoff Tweedale for allowing the author access to Tweedale's Directory before its publication and to Richard Wiltshire for granting access to the Chubb archives at the Guildhall Library, London. Earlier versions of this article were presented to seminars at the University of York and the London School of Economics. Some of the research was financed by a Nuffield Grant, Ref: SGS/33846.

1 Chamberlin, Edward, The Theory of Monopolistic Competition (Cambridge, Mass., 1962)Google Scholar; Akerlof, George, “The Market for Lemons,” Quarterly Journal of Economics 84, no. 3 (1970): 488500CrossRefGoogle Scholar.

2 Chandler, Alfred D. Jr., Scale and Scope: The Dynamics of Industrial Capitalism (Cambridge, Mass., 1994), paperback editionGoogle Scholar; Wilkins, Mira, “The Neglected Intangible Asset: The Influence of the Trademark on the Rise of the Modern Corporation,” Business History 34, no. 1 (1992)CrossRefGoogle Scholar; Wilkins, Mira, “When and Why Brand Names in Food and Drink?” in Adding Value: Brands and Marketing in Food and Drink, ed. Jones, Geoffrey and Morgan, Nicholas J. (London, 1994), 1540Google Scholar. Duguid, Paul, “Developing the Brand: The Case of Alcohol,” Enterprise and Society 4, no. 3 (2003): 405–41Google Scholar; Duguid, Paul, “Networks and Knowledge: The Beginning and End of the Port Commodity Chain, 1703–1860,” Business History Review 79, no. 2 (2005): 493526CrossRefGoogle Scholar; Higgins, David M. and Verma, Shraddha, “The Business of Protection: Bass and Co., and Trade Mark Defence,” Accounting, Business and Financial History 19, no. 1 (2009): 119CrossRefGoogle Scholar; Simpson, James, “Cooperation and Conflicts: Institutional Innovation in France's Wine Markets, 1870–1911,” Business History Review 79, no. 2 (2005): 527–58CrossRefGoogle Scholar. More recently, Mercer, John, “A Mark of Distinction: Branding and Trade Mark Law in the U.K. from the 1860s,” Business History 52, no. 1 (2010): 1742CrossRefGoogle Scholar. Lopes, Teresa da Silva, Global Brands: The Evolution of Multinationals in Alcoholic Beverages (Cambridge, 2007)CrossRefGoogle Scholar.

3 Wilson, Charles, “Economy and Society in Late Victorian Britain,” Economic History Review 18, no. 1 (1965): 191CrossRefGoogle Scholar.

4 Chandler, , Scale and Scope, 262Google Scholar.

5 Ibid., 147.

6 Wilkins, , “When and Why,” 20, 25, 26Google Scholar.

7 Chandler, , Scale and Scope, 6465Google Scholar.

8 Wilkins, , “When and Why,” 18, 22Google Scholar.

9 For exceptions, see Jones, Roger Lloyd and Lewis, Myrddin J., “Personal Capitalism and British Industrial Decline: The Personally Managed Firm and Business Strategy in Sheffield, 1880–1920,” Business History Review 68, no. 3 (1994): 364411CrossRefGoogle Scholar; Higgins, David M. and Tweedale, Geoffrey, “Asset or Liability? Trade Marks in the Sheffield Cutlery and Tool Trades,” Business History 37, no. 3 (1995): 127CrossRefGoogle Scholar.

10 The Trade Marks Act, 1875 (38 & 39 Vict. Ch. 91).

11 See, for example, Duguid, Paul, “French Connections: The International Propagation of Trademarks in the Nineteenth Century,” Enterprise and Society 10, no. 1 (2009): 337CrossRefGoogle Scholar.

12 Duguid, Paul, Lopes, Teresa da Silva, and Mercer, John, “Reading Registrations: An Overview of 100 Years of Trademark Registrations in France, the United Kingdom, and the United States,” in Trade-Marks, Brands and Competitiveness, ed. Duguid, Paul and Lopes, Teresa da Silva (London, 2010), 930Google Scholar. The Trademarks Act, 1875, became operational on January 1, 1876. Only after this date could trademarks be registered.

13 Because of overlap between the categories of “food,” “alcohol,” and “chemicals used for medicine and pharmaceuticals,” the latter class may sometimes be included among “non-durable consumer products.” It should also be noted that the trademark classification does not conform to standard industrial codes (SICs). Consequently, some products belonging to paper and stationery, as well as some household products and toiletries, may be classed as non-durable consumer products. See Duguid, Lopes, and Mercer, “Reading Registrations,” 18.

14 These positions are reversed in later subperiods.

15 Similar longevity of trademark use can be observed in the textile trademark classes. For example, James Chadwick, sewing thread, twenty years; Schuster, Fulda & Co., cotton yarn and thread, twenty-five years; Thomas Porter, cotton goods, thirty years; John Mulliner, cotton webbing, sixty years; Hutton & Co., cotton goods, ninety years; Christy and Sons, towelling, up to twenty-eight years; I. & W. Taylor, sewing cotton manufacturers, up to forty-seven years.

16 Duguid, “Developing the Brand”; Higgins and Verma, “The Business of Protection.”

17 Cox, Rowland, A Manual of Trade-Mark Cases, Comprising Sebastian's Digest of Trade Mark Cases (Boston, 1881), 70, 106, 146–47Google Scholar.

18 Strutt v. Murton, The Daily News, 20 June 1850, 6. Similar cases include Ferguson v. Parker, Morning Chronicle, 22 Apr. 1842; Ferguson v. Bagnall (1847); Clark v. Clark, Glasgow Herald, 14 Oct. 1857, 6; Higginbotham, Macnee and others v. Nimmo, Manchester Times, 13 Feb. 1858, 6. Statements in the press also warned against infringement: Messrs Nichol and their “The Koh-I-Noor Paletot,” Morning Chronicle, 13 Sept. 1851; statement by Odier, Gros. & Co., Glasgow Herald, 29 May 1857, 2Google Scholar.

19 See, for example, the following cases taken from Cox, , A Manual of Trade-Mark Cases: Sykes v. Sykes (1824)Google Scholar; Motley v. Downman (1837); Millington v. Fox (1837); Edelstein v. Vick (1853); Shrimpton v. Laight (1854); Edelstein v. Edelstein (1869); Hopkins v. Hitchcock (1863); Bury v. Redford (1864); Beard v. Turner (1865); Standish v. Whitwell (1866); Dixon v. Jackson (1867).

20 Hall v. Burrows, Law Journal Reports, Chancery (L.J.Ch.) 548 (1863).

21 Reported in Chubb Collectanea, vol. 1, part 1, Guildhall Library, London (hereafter, Chubb Collectanea). See also Wilson v. Heenon (1833) in Chubb Collectanea.

22 Sheffield Register, 1844, 404. Similarly, William Butcher and Samuel Butcher v. William Horrabin and Samuel Horrabin (1843), Chubb Collectanea vol. 1, part 1; Collins Co. v. Cohen (1858), Morning Chronicle, 13 Jan. 1858, 8.

23 Later commentary indicated that Rodgers had spent £1,000 per annum for over forty years defending its trademarks. Hardware Trade Journal, 31 Mar. 1886.

24 Charles and Jeremiah Chubb were established as ships' ironmongers in the early nineteenth century. In 1818, Jeremiah Chubb patented the “detector lock,” which rendered the lock inoperable without the correct key. The firm become a limited company in 1882 and was taken over by Racal Electronics in 1984. Numerous accolades are reported in Chubb Collect-anea: vol. 1, part 2; vol. 4, part 1; vol. 5, parts 2 and 6; vol. 10, part 3; and vol.11, part 2.

25 Morning Chronicle, 23 Apr. 1842. See also Carpenter and Tildesley v. Wootton (1847) involving misuse of marks on locks; Chubb Collectanea, vol. 1, part 2. The first action taken by Chubb appears to be 1831. Chubb Collectanea, vol. 1, part 1.

26 Times, 2 June 1865; Chubb Collectanea, vol. 1, part 1; Bill of Complaint, 25 May 1865, Chubb Collectanea, vol. 3, part 4; Chubb v. Solomon (1872); report from Midland Counties Express, 28 Dec. 1872, Chubb Collectanea, vol. 3, part 4.

27 Strictly, actions for infringement only apply to registered trademarks.

28 Kerly, Duncan M., The Law of Trade-Marks, Trade Name and Merchandise Marks (London, 1894), 266Google Scholar.

29 Merchandise Marks Act (1862), 25 and 26Google Scholar Vict., c. 88, s. 1.

30 Complicating matters was the fact that many marks functioned as trademarks but were not registered as such. Moreover, actions for passing-off, or misrepresentation, might be successful where actions for infringement were not. Blanco-White, T. A., Kerly's Law of Trade Marks and Trade Names (London, 1966), 369Google Scholar.

31 Ibid., 374–75.

32 Cutler, , On Passing Off, 2Google Scholar. Also, Lever v. Goodwin (1887) (imitation parchment soap wrappers), 4 Report of Patent Cases (hereafter, RPC ), 492; Montgomery v. Thompson, (1889) (beer), 41 Chancery Division (hereafter, Ch.) 35; Paine & Co. v. Daniels & Sons' Breweries (1893) (beer), 2 Ch. 567; Great Tower Street Tea Company v. Langford (1897) (imitation tea packets), 5 RPC 66; Ripley v. Bandey (1897) (washing blue), 14 RPC 591; Payton & Co. v. Snelling, Lampard & Co. (1900) (coffee tins) 17 RPC 628; Faulder v. Rushton Ltd. (1903) (jam), 20 RPC 477.

33 For example, Reddaway v. Banham (1896) (Camel Hair Belting), 13 RPC 218; Eastman Photographic Materials Company v. John Griffiths Cycle Corporation (1898) (“Kodak” on bicycles), 15 RPC 105; Dunlop Pneumatic Company v. Dunlop Lubricant Company (1899) (“Dunlop” on lubricating oils), 16 RPC 12; The Birmingham Small Arms Company (BSA) was plagued by foreign bicycle manufacturers constructing fake BSA bicycles. BSA 879, BSA Collection, Solihull Heritage and Local Studies Service, Solihull, West Midlands, U.K. Similar problems confronted the West Midlands iron founder Glazebrook & Co. and their dealings with the Sheffield merchants Kittel, Wilisch & Co., 21 May 1887, 23 May 1887, 25 May 1887, DGR/3, Dudley Archive Centre, Dudley, West Midlands, U.K.

34 Underhay, Francis G., Kerly's Law of Trade Marks and Trade Name (London, 1913), 43Google Scholar.

35 Ladas, Stephen P., Patents, Trademarks and Related Rights (Cambridge, Mass., 1975), 3132.Google Scholar

36 Ibid., 993–1010; Hopkins, James L., The Law of Unfair Trade, Including Trade Marks, Trade Secrets and Goodwill (Chicago, 1900), 40Google Scholar.

37 Richardson, Gary, “Brand Names before the Industrial Revolution,” National Bureau of Economic Research, Working Paper, 2008, 4Google Scholar.

38 Barley, Simon L., “Hand Tool Manufacture during the Industrial Revolution: Sawmaking in Sheffield,” c.1750–c.1830, unpublished PhD thesis, University of Sheffield, 2008, 24, 210–18Google Scholar.

39 Tweedale, Geoffrey, Tweedale's Directory of Sheffield Cutlery Manufacturers, 1740–2010 (London, 2010), 36Google Scholar.

40 Schechter, Frank I., The Historical Foundations of the Law Relating to Trade-Marks (New York, 1925), 128–33Google Scholar.

41 The Sheffield firms John Barker & Son, Joseph Rodgers & Sons, and Messrs. W. and S. Bucher defended their marks in the U.S. in 1825, 1843, and 1860, respectively. Tweedale, , Tweedale's Directory, 56Google Scholar; Tweedale, Geoffrey, Sheffield Steel and America (Cambridge, 1987), 182Google Scholar; Sheffield Local Register (Sheffield, 1860)Google Scholar, January. Similar action was instigated by British textile firms. J. & P. Coats had launched 100 injunctions in the U.S. by 1862. Select Committee on Trade Marks Bill and Merchandize Marks Bill (London, 1862)Google Scholar, Q.1589; Taylor v. Carpenter (1846). Cox, , A Manual of Trade-Mark Cases, 4142Google Scholar; 44–45.

42 Greeley, Arthur P., Foreign Patent and Trade Mark Laws (Washington, D.C., 1899), 219–37Google Scholar.

43 Schechter, , The Historical Foundations, 140n7Google Scholar.

44 International Convention for the Protection of Industrial Property, C. 4043 (London, 1884), 7Google Scholar.

45 Bogsch, Arpad, The First Hundred Years of the Paris Convention for the Protection of Industrial Property (Geneva, 1983), 117Google Scholar.

46 Adams, Frank M., A Treatise on the Law of Trade Marks (London, 1876), 51Google Scholar.

47 Church, Roy, “The British Market for Medicine in the Late Nineteenth Century: The Innovative Impact of S. M. Burroughs & Co.,” Medical History 49 (2005): 281–98CrossRefGoogle Scholar; Corley, Tony, “U.K. Government Regulation of Medicinal Drugs, 1890–2000,” Business History 47, no. 3 (2005): 337–51CrossRefGoogle Scholar.

48 Calculated from Report of the Comptroller General of Patents, Designs, and Trade Marks (London), various issues, and Historical Statistics of the United States Millennial edition (online version), Tables Cg 27–37.

49 The British data refer to “complete patent specifications,” not approved patents.

50 Greeley, , Foreign Patent and Trademark Laws, 136Google Scholar; Hopkins, , Law of Unfair Trade, 5456Google Scholar; Nims, Harry D., The Law of Unfair Competition (New York, 1909), 299301Google Scholar; Rodgers, Edward S., Goodwill, Trademarks and Unfair Trading (Chicago, 1914), 237Google Scholar; Kerly, Duncan M. and Underhay, Francis G., The Law of Trade Marks, Trade Names and Merchandise Marks (London, 1901), 401–4Google Scholar; Kerly, Duncan M. and Underhay, Francis G., The Law of Trade Marks and Trade Names (London, 1908), 430–33Google Scholar; Underhay, Francis G., The Law of Trade Marks and Trade Names (London, 1913), 476–80Google Scholar; Sebastian, Lewis B., The Law of Trade Marks (London, 1899), 213–17Google Scholar; Sebastian, Lewis B., The Law of Trade Marks (London, 1911), 232–35Google Scholar.

51 Heseltine, Norman F., A Digest of the Law of Trademarks and Unfair Trade (Boston, 1906), 143Google Scholar.

52 Adams, , A Treatise, 39.Google Scholar Prior to The Merchandise Marks Act, 1862 (25 & 26 Vic. c.88), it was possible for a plaintiff to bring an action even if he had never owned a patent, but after this Act such cases were disbarred. Sebastian, Lewis B., The Law of Trade Marks and Their Registration (London, 1884), 196Google Scholar.

53 Flavel v. Harrison (1853); Morgan v. McAadam (1866); Leather Cloth Co. (Limited) v. Lorsont (1869). Cox, , A Manual of Trade-Mark Cases, 65Google Scholar; 152–53; 183–84.

54 Consolidated Fruit Jar Co. v. Dorflinger (1874); Cox, , A Manual of Trade-Mark Cases, 250–51Google Scholar.

55 Underhay, , The Law, 45Google Scholar; Rodgers, , Goodwill, 236Google Scholar; Singer, Berthold, Trade Mark Laws of the World and Unfair Trade (Chicago, 1913), 199200Google Scholar; Ladas, , Patents, Trademarks, and Related Rights, 1182Google Scholar.

56 Sebastian, Lewis B., A Digest of Cases of Trade Mark, Trade Name, Trade Secret, Goodwill (London, 1879), 192, 313Google Scholar; Cox, , A Manual of Trade-Mark Cases, 299300Google Scholar.

57 11 Federal Reporter (Fed. Rep.) 706; see also Singer Manufacturing Co. v. Larsen (1878), 13 Chicago Legal News (Chi. Leg. N.) 59; Singer Manufacturing Co. v. Stanage (1881), 6 Fed. Rep., 297; Brill v. Singer Manufacturing Co. (1884); Hopkins, , Law of Unfair Trade, 5152Google Scholar; Singer Manufacturing Co. v. Bent (1896); 163 United States Supreme Court Reports (U.S.); Singer Manufacturing Co. v. June (1896), 41 Fed. Rep. 208.

58 Greene, Tweed & Co. v. Mfrs. Belt Hook Co; Westcott Chuck Co. v. Oneida Nat. Chuck. Co., quoted in Nims, Harry D., The Law of Unfair Competition (New York, 1909), 301–3Google Scholar; Adee v. Peck Bros. (1889), 89 Fed. Rep. 209. Heseltine, , A Digest, 141–44Google Scholar.

59 Hopkins, , The Law of Unfair Trade, 54Google Scholar.

60 Adams, , A Treatise, 53Google Scholar.

61 Nims, , The Law of Unfair Competition, 495Google Scholar.

62 Bill of Complaint, 12 Dec. 1872, 2, TR/RAN CO6/2, Museum of Rural Heritage, Reading University, Reading, U.K. In Ransome v. Graham (1882), the plaintiffs had to re-establish the right to use an expired patent as part of their trademark. For related cases, see Cox, A Manual of Trade-Mark Cases, Edelsten v. Vick (solid-headed pins) (1853), 67–68; The Leather Cloth Co. (Limited) v. Hirschfeld (leather cloth) (1863), 143–44; Marshall v. Ross (patent thread) (1869), 179; Ford v. Foster (shirts), 215–16.

63 Blanco-White, , Kerly's Law, 148Google Scholar; Sebastian, , The Law (1911), 617–18Google Scholar.

64 Daily News, 14 May 1846, 5; Sheffield and Rotherham Independent, 30 May 1846, 1Google Scholar. Mercer, , “A Mark,” 23Google Scholar.

65 Johnson, Edmund, “Trade Marks,” Journal of the Society of Arts, 19 Apr. 1881, 501Google Scholar.

66 Kerly, and Underhay, , The Law (1901), 135Google Scholar; Report of the Committee Appointed by the Board of Trade to Inquire into the Duties, Organisation, and Arrangements of the Patent Office, Parliamentary Papers 81, no. 17 (1888) (C.5350) (hereafter, Herschell Report), Q. 206, Q.213, Q.291, Q.299, Q.393, Q.396. At a later official hearing it was reported, “The great proportion of the large export trade in cotton piece goods … is effected upon combinations of unregistrable marks.” Evidence of Bailey, Charles, Report and Special Report from the Select Committee on the Trade Marks Bill (London, 1905), 53Google Scholar, s.20 (hereafter, Select Committee, 1905).

67 Kerly, and Underhay, , The Law (1901), 223Google Scholar.

68 The Trade Marks Act, 1875, s. 3.

69 Mr.Chitty, Justice, in Re Jelley, Son and Jones's Application, Law Times 46, no. 8 (1882): 381Google Scholar.

70 Meeting of Subcommittee, 25 Feb. 1876, Proceedings of the Manchester Chamber of Commerce, Manchester City Library Archives, Manchester, U.K. (hereafter, MCC).

71 Opinion of Diplock, Lord, in Johnson, Phillip, “The Rise and Fall of Honest Concurrent Use,” in Trade Mark Law and Sharing Names, ed. Fhima, Ilhana S. (Cheltenham, 2009), 32Google Scholar.

72 MCC Minutes, 25 Feb. 1876, 10 Mar. 1876, 9 Aug. 1876.

73 Kerly, and Underhay, , The Law (1901), 112Google Scholar.

74 Sebastian, , The Law (1911), 587nCGoogle Scholar.

75 Herschell Report, Q.180, Q.577, Q. 582, Q.775.

76 The Trade Marks Act (1905), 5Google Scholar Edw. 7, Ch. 15, s. 64; The Trade Marks Act (1938), 1Google Scholar and 2 Geo. 6, c. 22, s. 39. The Company of Cutlers in Hallamshire (Sheffield) was responsible for trademarks used in the cutlery and edge tool trades. This company received statutory recognition in relation to “Sheffield” marks from the Trade Marks Act 1875 (38 and 39 Vict. Ch. 91, s. 9); its role in awarding marks in these trades dates to the seventeenth century.

77 Patents, Designs, and Trade Marks Act (1883), 46 and 47Google Scholar Vict. Ch. 57, s. 74 (iii).

78 Trade Marks Act (1905), 5Google Scholar Edw. 7, Ch. 15, s. 21.

79 Hey, David, “The Establishment of the Cutlers' Company,” in Mesters to Masters: A History of the Company of Cutlers in Hallamshire, ed. Binfield, Clyde and Hey, David (Oxford, 1997), 12Google Scholar.

80 Johnson, , “Trade Marks,” 504Google Scholar.

81 Blanco-White, , Kerly's Law, 8689Google Scholar.

82 Sebastian, , The Law (1899), 33Google Scholar.

83 Sheffield Independent, 6 July 1870.

84 Unwin, Joan, “The Marks of the Freemen of the Cutlers' Company, 1624–1791,” in Mesters to Masters, ed. Binfield, and Hey, , 46Google Scholar.

85 Tweedale, , Tweedale's Directory, 47–48, 73, 84, 122, 171, 316, 449Google Scholar.

86 Underhay, , The Law, 122Google Scholar.

87 Tweedale, , Tweedale's Directory, 48, 232, 281, 452Google Scholar.

88 Hannah, Leslie, The Rise of the Corporate Economy (London, 1983)Google Scholar, Appendix 3, 187–88.

89 Select Committee on Merchandise Marks Act, 1862 (London, 1887)Google Scholar, QQ.664–66, QQ.2272–73, QQ.4745–50, QQ.4775–78; Report from the Select Committee on the Merchandise Marks Act, 1887 (London, 1890)Google Scholar, Q.1306, QQ.1397–1406, QQ.1741–42, QQ.2174–77, Q.2258, QQ.3508–15, QQ.4300–3; Evidence of Charles Bailey, Select Committee, 1905, 53.

90 Lury, Christine, Brands: The Logos of the Global Economy (London, 2004)Google Scholar.

91 Recent scholarship suggests that trademarks used in cotton textiles and metal fabrication were simply “protobrands” or “product brands”; intended to indicate trade origin, they did not provide the basis from which more complex brand attributes—such as brand personality —could develop. Moore, Karl and Reid, Susan, “The Birth of Brand: 4000 Years of Branding,” Business History 50, no. 4 (2008): 419–32CrossRefGoogle Scholar; Deven R. Desai, “Abstract: A Brand Theory of Trademark Law,” Thomas Jefferson School of Law Research Paper no. 1585327, 2010; Tweedale, Geoffrey, Steel City: Entrepreneurship, Strategy, and Technology in Sheffield, 1743–1993 (Oxford, 1995), 175–76CrossRefGoogle Scholar.

92 Blanco-White, , Kerly's Law, 182Google Scholar.

93 Johnson, , “The Rise and Fall,” 4243Google Scholar.