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Abstract
Historians identify the process of registration as key to the ‘modern mark’. Hence the introduction of trademark registration with the US federal law of 1870 appears as a pivotal event, endorsing Chandlerean accounts of the modern mark as a product of the ‘Second Industrial Revolution’. Such accounts overlook the earlier registration laws in places where economic conditions challenge claims for an industrial origin to registration. This article looks at California’s registration law, which antedated the US federal law by seven years, asking whether it is merely an exception to prove the Chandlerean rule, or an example that asks us to question Chandlerean assumptions.
Acknowledgements
I am particularly grateful to Megan Finn and Deven Desai, both of whom read earlier drafts of this paper and offered insightful and helpful comments, to archivists in the US and Europe, and particularly in California, who gave me ready access to the sources drawn upon in the argument, and to the editors of this special issue and its anonymous reviewers, who provided particularly helpful suggestions, which I have tried to follow.
Notes
1. Bently, “Making of Modern Trade Mark Law,” 4; Chandler, Scale and Scope, 62; Wilkins, “The Neglected Intangible Asset,” 69; Beniger, Control Revolution, passim; Higgins, “Making of Modern Trade-mark Law,” 42; Chandler, Visible Hand; “Act to Revise, Consolidate, and Amend the Statutes relating to Patents and Copyrights” 16 Stat. 198 1848–187; “Trade Marks Registration Act, 1875,” 38 & 39 Vict. Chap. 91.
2. Chandler, Scale and Scope; Wilkins, “Neglected Intangible Asset,” 69; Beniger, Control Revolution, 294, 264; Higgins, “Making of Modern Trade-mark Law.”
3. Schechter, Historical Foundations, 446, 140. In 1862, a House of Commons committee noted that trademark registration was already functioning in Austria, Bavaria, Belgium, France, Hanover, the Netherlands, Portugal, Prussia, Russia, Sardinia, Saxony, Spain, Sweden, Norway, and Württemberg. Report from the Select Committee on Trade Marks Bill, para. 72. For France's influence, see Duguid, “French Connections”; for Spain, see Sáiz and Fernández Pérez, “Catalonian Trademarks.”
4. Scardamaglia, Colonial Australian Trade Mark Law, 119. Table 1, p. 22, shows that South Australia passed a registration act in 1863 and was followed by Tasmania, Queensland, and New South Wales in 1865. Registration did not begin in any state, however, until 1865.
5. California passed its registration law in 1863, Oregon, 1864, Nevada, 1865, Kansas and Missouri, 1866. See “Act Containing Trade Marks and Names,” Statutes of California, 1863, Chap. 129 [hereafter California Statutes are noted by the year and chapter of the Statutes]; “Of Trade and Stock Marks and Brands,” Laws of Oregon, 1874, Chap. 23; “Act Concerning Trade Marks and Names,” Statutes of the State of Nevada, 1864–5, Chap. 82; “Act to Prevent the Counterfeiting, Changing, or Destroying Trade Marks, Devices and Brands,” Laws of the State of Kansas, 1866, Chap. 66; “Act to Protect Mechanics, Manufacturers and Others in their Trade Marks,” Laws of the State of Missouri, 99. Other US states had trademark law, much as the UK had its Merchandise Marks Act (25 & 26 Vict.); none, however, had registration before California. Edward Rogers brief history of trademarks notes that New York (1847), Connecticut (1859), Iowa (1860), Michigan (1863) had trademark law by 1863, but besides omitting California, Rogers fails to note that these states did not offer registration. Rogers, “Some Historical Matters,” 42. Rogers's omission suggests that he took his list from the report of the commissioners appointed to examine US trademark law in 1898, whose list of 'all the State statutes on the subject prior to the first national statute approved July 8, 1870' also omits California. US Congress, Report of the Commissioners, 91–2. Although New York appears first in both lists, it only introduced registration in 1889, and that just for 'associations or unions'. Laws of New York, 1899, Chap. 385. The Province of Canada passed its registration law in 1861 “An Act to Amend the Act Respecting Trade-Marks and to Provide for the Registration of Trade-Marks.” See Smart, The Law of Trade-Marks and Designs in Canada, Chap. IV. As Bently notes, 'a number of colonies established their own systems in the 1860s'. See Bently, “Extraordinary Multiplicity,” 170.
6. 'Star players' comes from Scranton and Fridenson, Reimagining Business History, 5. Registration data are drawn from the trademark applications and trademark registers in the California State Archives, Sacramento, the Missouri State Archive, and the annual Report of the Commissioner of Patents and Trade-Marks. I am grateful to the state archivists for help with this work. Borax was entered in 1890 as mark number 1874 in the California register. Hereafter entries will be identified by registrant, date, and number. Del Monte Milling, 1884 1194; Ghiradelli, 1880 595; Martinelli, 1875 313; Levi Strauss, 1881 726; Sperry, 1875 321 l. While these businesses would seem to fall into the Chandlerean mould, Ghiradelli initially opposed the idea of trademarks (Daily Alta California [hereafter Alta], 1861, June 12, 1), while Levi Strauss did not apply for a trademark for his famous riveted jeans until some 10 years after their introduction and eight years after their patent.
7. Derringer, 1863 20; Anheuser, 1877 413; Clicquot, 1864 26; Heidsieck, 1864 27. E. Anheuser also registered a federal mark in 1877, yet curiously it did not register in its own state, Missouri, though registration was available there. See Annual Report of the Commissioner of Patents for the Year 1877. For the influence of Champagne firms in the development of French law, see Duguid, “French Connections.”
8. For the French contribution (see section 4).
9. On the 'industrialisation', see Jung, “Capitalism Comes to the Diggings.”
10. Nash, “A Veritable Revolution.”
11. Pinney, Makers of American Wine, 68.
12. Decennial census numbers suggest that throughout the nineteenth century, California had a higher per capita rate of registration than the federal government. For another comparison, in the first year of its operation, the Canadian registration law of 1861 registered nine marks. See Canada Gazette, XXII No. 11, 14 March 1863, pp. 778–779. At the time, the population of Canada was more than eight times that of California.
13. 'L'importance de l'état de Californie … a grandi considérablement en peu d'années. … Ces considerations nous décident à détacher de la législation des États-Unis celle qui concerne particulièrement la Californie'. Maillard de Marafy, Grand Dictionnaire, 2:309.
14. Journal of the California Senate. Fourteenth Session, 88 and passim. Statutes 1863 Chap. 129.
15. Charles Story, 1863 12. (Story's mark was not number 1 because registrations under the bottle law (see section 4) preceded it. Fish v Redington, 31 Cal 185 (1866).
16. 'San Francisco Bills', Alta, 1863, April 13, 1; Elsewhere the paper took a more cosmopolitan view, puffing the law as 'better than any trade-mark law to be found in any State or country'. 'Trade-mark Bill', Alta, 1863, Feb 2, 1.
17. For the city's relation to the mines, see Brechin, Imperial San Francisco.
18. Pinney argues that the earliest vines came to California in 1778, but that the main sources of early cultivation were the Missions. Makers of American Wine, 58.
19. Scardamaglia puts the Australian 'gold rush' among the 'localised factors' that led to Australian trademark registration law. Colonial Australian Trade Marks, 6.
20. Early California wines, known as 'port' and 'Angelica' were often heavily fortified with spirits, causing a New York critic to complain that 'A bottle full of [Angelica] contains I don't know how many headaches'. Pinney, Makers of American Wine, 66.
21. Arpad Haraszthy, 'The Vine and Wine in Europe', 1. 'Report of the Assembly Select Committee on the Vine-Growing Interests of California', Alta, 1861, Feb 26, 1.
22. Pinney, History of Wine, 275.
23. Agoston Haraszthy, Grape Culture, xv.
24. Rowell, Rowell's American Newspaper Directory, 1006.
25. Schechter, Historical Foundations, 139.
26. Statutes 1849–50 Chap. 123.
27. Statutes 1855 Chap. 143.
28. Statutes 1852 Chap. 57. All flour had to be branded. Purchasers of flour branded by the seller could call on the Inspector if the flour seemed substandard. If the Inspector agreed, the seller could be 'deemed guilty of fraud' and fined up to $50. Grades of 'Middling', 'Bad', and 'Condemned' were added in the 'Amendatory' act of the following year, Statutes 1853 Chap. 174.
29. Statutes 1849–50 Chap. 89. The California trademark law of 1861 (see section 4) along with those of Missouri and Kansas initially required registration by county, suggesting a precedent set by prior cattle brand and mark legislation. By 1863 the legislature had evidently realised that commodities might wander further than cattle.
30. Political Code of the State of California, Chap. 7. See also the title of the Oregon law of 1864 (see footnote 5).
31. See, for example, Benton, The California Pilgrim, quoted in Ostrander, Prohibition Movement, 2.
32. “Disgraceful Conduct,” Sacramento Daily Union, 1855, May 21, 2.
33. Bret Harte, The Outcasts of Poker Flat.
34. Statutes, 1851, Chap. 39.
35. Statutes, 1851, Chap. 58.
36. Ostrander, Prohibition Movement, 14–15, passim. “California Legislature,” Sacramento Daily Union, 1855, March 22, 3.
37. Statutes, 1860, Chap. 223. D.W. Welty, an elected officer of the 'Sons of Temperance', introduced the bill. Sacramento Daily Union, 1859, Dec 27, 3. “No Strychnine in Whisky,” Sacramento Daily Union, 1860, Nov 1, 4; “Revolting Charges in San Francisco,” Sacramento Daily Union, 1858, Sep. 10, 3. California Farmer and Journal of Useful Sciences, 1862, 18 July, 1. Pinney, Wine Makers, 63.
38. “The Wine Growers' Convention,” Sacramento Daily Union, 1862, Dec 12, 3. The committee argued that ' Perhaps it would be well to amend the Act so as to define adulterations of wine, so that there may be no mistake. … These customs and others similar in character reputable among the most honest wine growers, should be carefully distinguished from all mixtures of colouring matter, drugs and diluted alcohol, the use of which is so nearly akin to fraud that no line of separation can be safely drawn'.
39. 'California Legislature', Sacramento Daily Union, 1860, Feb 25, 1. The wine sector may have had an interest in rejecting this bill. Pinney notes a report that most of the 12,000 bottles that Kohler and Frohling, a major San Francisco wine merchant and exporter, used annually came recycled from the San Francisco junk dealers. Wine Makers, 69.
40. 'Native vs. Imported Wines', Alta, 1858, Dec 14, 1.
41. “Frauds in Fabricating and Adulterating Wine,” Alta, 1859, Oct 8, 2.
42. Statutes, 1861, Chap. 478. The law passed on May 18th; on that day Delahanty and Skelly (1861 1) recorded their mark for soda water. By a curious coincidence, the Canadian trademark registration law was assented to on the same day. Canada Gazette, XX No. 21 (1861), 1. I found no sign that either law was influenced by (nor its legislators aware of) the other. Revealing other shared interests, Scardamaglia notes that Australia's law was influenced by the concerns of 'the bottlers of aerated waters and cordials, who were especially alarmed about the unauthorised use of their trade marks and embossed bottles'. Colonial Australian Trade Mark Law, 10.
43. Haraszthy had described the Clicquot name as 'known all over the world'. Grape Culture, 114.
44. “Répertoire de 1825 à 1858. Marques de Fabrique et de Commerce,” Archives Départmentales de la Marne. “Californian and Other Wines,” Alta, 1860, Sept 5, 2.
45. During the oidium outbreak, French production sank from 39 million to 11 million hectoliters. Campbell, Phylloxera, 31. Meanwhile, between 1860 and 1863, years of the war, California wine exports to the east increased 100%. Carosso, California Wine Industry, 34.
46. Leland Stanford, the governor who signed the 1863 act into law, had set up the Central Pacific Railroad the previous year and begun to build a road across the Sierra Nevada mountains. In future years, he would also own extensive vineyards. See Carosso, California Wine Industry; Bethel, “The Golden Skein.”
47. Statutes 1863 Chap. 129.
48. For the Alta, see note 16.
49. “Our Legislative Correspondence,” Alta, 1863, Jan 18, 1.
50. In the wine trade, the boundary between the native and foreign interests could be hard to draw. In 1862, the French consul noted a large number of foreign winemakers were at work in the state. “Un grand nombre de vignerons Français et Allemands sont employés.” “Rapport Commercial pour 1861 [de] Consulat de France à San Francisco,” Archives National de France, Fontes Commercial, California, f12/2593. “Californian and Other Wines,” Alta, 1860, Sept 5, 2. "Our Legislative Correspondence," Alta, 1863, Jan 27, 1. As Scardamaglia notes, such interests cast doubt on conventional accounts of trademark law developing to serve consumer interests. Colonial Australian Trade Mark Law, passim.
51. If he is compared to fellow members of the Commerce and Navigation Committee, to which his bill was referred, Whiting worked on five bills over the session, the other three worked on six, nine, and 20 respectively. Of the remaining bills Whiting worked on, one addressed the roads and another the fire brigade of San Francisco, Whiting's city. Journals of the California Senate, Thirteenth Session.
52. Whiting and Berry, Treatise on Wines, Spirits, and Teas.
53. It would be useful to know the number of retailers as opposed to producers in the register, but the data available do not provide them. Of registrations in general and of the wine registrations in particular from the nineteenth century, about 60% of the registrations in general and of the wine registrations in particular come with a San Francisco address. While many of these would have been retailers, several are likely to have been, or been proxies for, producers, and many would have been both producers and retailers. Under 5% came from out of state, and those we can more reasonably assume were not retailers.
54. “Trade-Marks,” Wine Dealers' Gazette, 1873 No.2: 1.
55. The Rescue began in 1864. According to the Wine Dealer's Gazette, it portrayed Whiting as a fallen figure, 'formerly a member of your Legislature', but now associating 'with the whisky-makers and drunkard-makers [who] force you to swallow the filthy mixtures … poison which they manufacture', Gazette, 1874, 3(4): 1.
56. “A Plea for 'The Civil Damages Act',” Pacific Rural Press, 1873, Aug 2, 67.
57. 1874 Chap. 300. Alta,1874, June 26, 2.
58. 'Medicinal Whisky', 1870 284; [Advertisements] Alta, 1868, March 22, 2; 1868, Dec 25, 2.
59. Political Code of the State of California, Chap. 7.
60. For the laws, see note 5.
61. Bently, Making of Modern Trademark Law, 3.
62. For reluctance, see Schechter, 141. Derringer v Plate 29 Cal 293 (1865). Had other jurisdictions (or, indeed, California itself) paid attention to this ruling, a lot of court time might have been saved.
63. Walker, “California's Golden Road to Riches.”
64. Walker, “California's Golden Road to Riches,” 168.
65. Brechin, Imperial San Francisco.
66. Annual Report of the Commissioner of Patents 1858; ibid, 1859.
67. See Carosso, California Wine Industry, 55; Sullivan, A Companion to California Wine, 374. The University of California, as an agricultural college with particular interests in wine, was one peripheral outgrowth of this enthusiasm.
68. Statutes 1859 Chap. 199.
69. Landes and Posner, “Trademark Law.”
70. These names contrast with the national register, where in 1877, for example, words like 'imperial' and 'regal' top the chart. Among the almost 4000 California registrations made by 1901, there are some 140 ‘nonce’ words, almost half of these were adaptions that ended in -ene, -ine, or -yne (such as Linsene, Eucolyptine, or Neuralodyne), falling in with attempts of the time to associate medical products with scientific discoveries. In contrast, the register has some 98 marks for this period with 'Golden', 45 with 'sun', 16 with 'sunset', 13 with 'bay', 10 with 'Yosemite', and eight with 'Sierra' and '49'. These counts cannot be returned as simple percentages, as many of the marks registered images rather than words. Though here again, many of these images are of recognisable California landmarks. For the source of the state data, see note 6. For the Federal data, see Annual Report of the Commissioner of Patents, 1877.
71. To support their argument, Landes and Posner cite George Zipf's linguistic analysis of brand names. Trade Mark Law, 271. Zipf himself, however, argues to the contrary 'we do not find different brand-names for different producers or for different products'. Instead an 'inverse square relationship … suggests a subtle "balance" between the number of different brand-names and the comparative frequency of their usage by different firms'. Zipf, “Brand Names,” 363. The numbers in note 68 suggest something of a Zipf-like 'balance'.
72. While protecting its appellations, California has long been willing to appropriate those of others. Sainsevain led the way in this by registering marks for Champagne and Port while the Italian-Swiss Agricultural Society registered 'Tipo Chianti' which Pinney argues was 'the single most important brand name product of the California wine industry'. See Mendelson, From Demon to Darling; Pinney, Makers of American Wine, 80.
73. In current US law, 'association marks' are called 'collective' or 'certification' marks. Collective marks (such as 'girl scout cookies') may be used by anyone who is part of the organisation owning the mark (i.e., a girl scout). Certification marks (such as 'Fair Trade Coffee') may be used by anyone who meets the standards set by owner of the mark (e.g. Fair Trade U.S.A). See http://www.uspto.gov/learning-and-resources/trademark-faqs; visited July 25, 2016.
74. Statutes 1887 Chap. 150.
75. US Industrial Commission, Report of the Industrial Commission on Labor Legislation, 129.
76. Duguid, “Information in the Mark and the Marketplace.”
77. The ‘Progress’ clause of the US Constitution (Article 1, Section 8, Clause 8) gave Congress the power to 'promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive right to their respective Writings and Discoveries'. The 'Treaty' clause (Article 1, Section 10, Clause 1) reserved the right to make treaties to the federal government. See http://www.archives.gov/exhibits/charters/constitution.html; visited July 25, 2016. For an account of the 'turbulent' legislative and legal struggles, see Rosen, “In Search of the Trade-Mark Cases.” Schechter is curiously confused about this progression. See Historical Foundations, 140.
78. US Congress, Report of the Commissioners. 33 Stat. 724 1897–1907.
79. Duguid, “A Case of Prejudice?”
80. Marx, Capital I: 41, 47, passim.
81. US 60 Stat. 1943–1946. For praise of Lanham, see Duguid, “A Case of Prejudice?”
82. Duguid, “French Connections.”
83. For Schechter's footnote, see note 3.
84. Bently, “Extraordinary Multiplicity,” 170.
85. Colonial Australian Trade Mark Law, 116.
86. See, for example, the note on Rogers' omission of California (note 5). If this is indeed the case it may more appropriately be called an act of Commission rather than omission.
87. If that is the case, it produces a curious cycle. The French lead in marking built in part upon the continuous tradition of guilds in that country. These, the precursors of unions, had been outlawed in Britain since the Statute of Monopolies (1623).
88. Boorstin, 'Tradition and Method in Legal History', 426.
89. Writing at a time of crisis for law reports, W.T.S. Daniel argued that these should select cases with an eye to providing 'precedents for future guidance'. Daniel, The History & Origin of the Law Report, 88.
90. Harris, “Encounters of Economic History and Legal History.”
91. Boorstin echoes Herbert Butterfield's famous argument about Whig historians who 'emphasise certain principles of progress in the past … to produce a story which is a ratification if not the glorification of the present'. Whig Interpretation of History, v.
92. Scranton and Fridenson, Reimagining Business History.
93. See, for example, Atmore's challenge to teleological and determinist accounts in 'Railway Interests'.