Trademarks: Fingerprints of Commerce

    Trademarks are everywhere! In the medicine chest, in the closet, in the kitchen, in newspapers, in supermarkets, in restaurants, in shopping malls, on television and radio, and on buses.

Everyday, each of us encounters at least 1,500 trademarks and up to 30,000 if we visit a supermarket. They help us know the source of a product or service and give us valuable information about quality and consistency. Trademarks are the foundation of competition for businesses and signify the freedom of choice to consumers.

   Trademarks have been around a long time. Some have been found on pottery made around 5000 B.C.

   Trademarks were used for different reasons in different parts of the world. Pottery makers in ancient China used marks as symbols of pride in their workmanship. Egyptian and Roman masons marked their bricks for purposes of accountability if the building collapsed.

   In 1266, England passed a law requiring bakers to mark their bread so that "if any bread be faultie in weight, it may bee then knowne in whom the fault is."

   In 1772, a Virginia farmer petitioned the Fairfax County court to allow him to use his name as a trademark for flour. His request was granted. The farmer later became our first President.

   In 1791, a group of Boston sailcloth makers petitioned Congress to be allowed to register their marks. The matter was referred to Thomas Jefferson, then Secretary of State, who decided:

That it would, in his opinion, contribute to fidelity in the execution of manufacturing, to secure every manufactory, an exclusive right to some mark on its ware, proper to itself.

That it will, therefore, be reasonable for the general government to provide in this behalf by law for those cases of manufacture generally, and those only which relate to commerce with foreign nations, and among the several States, and with Indian tribes.

Thomas Jefferson

December 9, 1791

   In 1870, Congress enacted the first U.S. trademark law. It was later declared unconstitutional because it was improperly based on the patent and copyright clause in the Constitution. It wasn't until 1881 that a new law, based upon the commerce clause, was passed-just as Jefferson had suggested nearly a century before.

   Once a trademark is registered, it can be renewed indefinitely if it is still being used in commerce. However, the owner must prevent the public from misusing the brand name to refer to all similar products. They do this by reminding the public, through advertising, that their brand names are trademarks and not just words.

Some owners were unable to protect their marks after the public adopted them as common product names: corn flakes, dry ice, aspirin, escalator, high octane, kerosene, lanolin, linoleum, mimeograph, nylon, raisin bran, yo-yo, shredded wheat, trampoline.

   When you see this symbol®, it means that the trademark or service mark is registered with the U.S. Patent and Trademark Office.

These symbols are also used, usually before receiving a federal registration.

™ SM

   Buyer Beware! Counterfeiting-the false marking of goods-has been a problem for centuries. Trademark owners use criminal prosecution, policing infringers, and public education to discourage counterfeiting and infringement.

The international success of American products has led to a vast industry in counterfeit products. Product counterfeiting worldwide has cost America nearly $200 billion and about 750,000 jobs.

   In 1850, the California gold rush was in full swing, and everyday items were in short supply. Levi Strauss, a 20-year-old Bavarian immigrant, left New York for San Francisco with a small supply of dry goods. Shortly after his arrival, a prospector wanted to know what Mr. Strauss was selling. When Strauss told him he had rough canvas to use for tents and wagon covers, the prospector said, "You should have brought pants!," saying he couldn't find a pair of pants strong enough to last.

Strauss had the canvas made into pants. Miners liked the pants, but complained that they tended to chafe. Levi Strauss substituted a twilled cotton cloth from France called "serge de Nimes," which became known as denim.

In 1873, Levi Strauss & Co. began using the pocket stitch design. The two-horse brand design was first used in 1886. The red tab attached to the left rear pocket was created in 1936 as a means of identifying Levi's jeans at a distance. All are registered trademarks that are still in use.

   The original Dutch Boy was an advertising illustration. The first Dutch Boy trademark was painted in 1907 by Lawrence Carmichael Earl, a portrait painter from Montclair, New Jersey. He chose a nine-year-old neighbor as his model. Over the years, the Dutch Boy trademark was changed several times. In 1987, the Dutch Boy trademark returned to its 1907 design.

    Building designs can also serve as trademarks or service marks. For example, these two designs are registered to McDonald's Corporation for restaurant services.

    Sounds can be registered as trademarks if they identify the source of a product or service. For example, the roar of a lion-first used in 1924-identifies the motion pictures of Metro-Goldwyn-Mayer.

The NBC chimes were first used in 1961 to identify the programming of the National Broadcasting Company.

   The smell of a product can also serve as a trademark. In 1991, a woman from California registered a scent for her sewing thread and embroidery yarn. The trademark is described as "a high impact, fresh, floral fragrance reminiscent of plumeria blossoms."

   The Patent and Trademark Office initially refused registration of Owens-Corning's application to register the color pink for their fibrous glass insulation. Never before had a single color been entitled to protection. Owens-Corning had licensed use of the Pink Panther character, had spent millions promoting the "pinkness" of its product, and presented overwhelming survey evidence that customers of residential insulation knew that pink insulation came from a particular source. Owens-Corning was eventually successful on appeal.

   The Green Giant name was created in 1925 by the Minnesota Valley Canning Company as a brand name for a new type of pea. The company's trademark attorney, fearing that "Green Giant" could not be protected legally because it might be interpreted as describing large green peas, suggested adding a picture of a green giant to the label. The company did include a giant on the label, but he was not green until 1935.

   F. W. Ruckheim & Bro. created a unique mixture of popcorn, peanuts, and molasses for the 1893 Columbia Exposition in Chicago, the first World's Fair. (The Ferris Wheel, Aunt Jemima pancakes, and the ice cream cone were also introduced at the event.) The mixture was popular but difficult to handle because it tended to stick together in chunks. By 1896, the company devised a way to keep the popcorn kernels separate. The "Cracker Jack" name came from a popular slang expression of the time which signified excellence.

The wax-sealed, moisture-proof box was introduced in 1899. Immortalized in 1908 in the lyrics of "Take Me Out to the Ball Game," Cracker Jack added surprises in each package in 1912.

The Sailor Jack character, and his dog Bingo, were introduced in 1919. They were modeled on F. W. Rueckheim's grandson, Robert, and his dog.

   In 1886, Atlanta pharmacist John S. Pemberton took some of his new health elixer syrup to Jacob's Drug Store. Instead of being mixed with ice water, as he had instructed, the syrup was mixed with soda water. Pemberton and others liked the taste and he shifted his marketing strategy, encouraging the use of Coca-Cola as a drink of refreshment.

The name Coca-Cola is a combination of the names of two ingredients, the coca leaf (from South America) and the kola nut (from Africa). The name was suggested by Pemberton's bookkeeper, Frank Robinson, who also penned the fancy script logo in 1887.

Between 1887 and 1888, the name and formula were sold three times, ending up with Asa G. Candler. He made minor changes to the formula and ensured it remained a closely guarded trade secret, as it is to this day.

Coca-Cola was first bottled in 1894. By 1914, imitation cola drinks were widespread and Candler wanted a new, distinctive bottle design to readily distinguish Coca-Cola from competitors' cola drinks. An employee of a Terre Haute bottling plant designed the now classic bottle design in 1915. His inspiration for the fluted sides and bulging middle was the shape of the kola nut. In 1960, the bottle design was registered as a trademark with the U.S. Patent Office.