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From Communication to Thing: Historical Aspects of the Conceptualisation of Trade Marks as Property

U Iowa Legal Studies Research Paper No. 07-31

TRADEMARK LAW AND THEORY: A HANDBOOK OF CONTEMPORARY RESEARCH, Graeme B. Dinwoodie and Mark D. Janis, eds., Edward Elgar Publishers, 2008

49 Pages Posted: 12 Dec 2007  

Lionel A. F. Bently

University of Cambridge - Faculty of Law

Abstract

Contemporary trademark commentators frequently assert that trademark rights have been expanded too much, and that one of the root causes of this expansion is the tendency to treat trademarks as a form of property. This forthcoming book chapter places the proprietary model of trademarks in its historical context, particularly that of the second half of the nineteenth century. During this period, English law witnessed the conceptualisation of trade mark protection as property, without a concomitant expansion of rights. For example, English law in the 1870s or 1880s did not provide that trade-mark rights extended to the use of the protected sign on dissimilar goods. This raises a number of questions, including whether the concept of property has greatly changed in the past 130 years, and whether contemporary accounts over-emphasize the role of property rhetoric as a causal factor in the expansion of trade-marks law. While remaining agnostic about whether the expansion of trade marks rights is in fact the result of the use of property rhetoric, the chapter concludes that based on the historical record, it was less the adoption of property rhetoric than a transformation in its meaning that has brought about the change in trademark protection.

Keywords: trademark, legal history, intellectual property

JEL Classification: K10

Suggested Citation

Bently, Lionel A. F., From Communication to Thing: Historical Aspects of the Conceptualisation of Trade Marks as Property. U Iowa Legal Studies Research Paper No. 07-31; TRADEMARK LAW AND THEORY: A HANDBOOK OF CONTEMPORARY RESEARCH, Graeme B. Dinwoodie and Mark D. Janis, eds., Edward Elgar Publishers, 2008. Available at SSRN: https://ssrn.com/abstract=1034177

Lionel Bently (Contact Author)

University of Cambridge - Faculty of Law ( email )

10 West Road
Cambridge, CB3 9DZ
United Kingdom

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