Abstract: Call This Progress? The Uncertain Path of U.S. Trademark Law and Practice in the Nineteenth Century

Paul Duguid, Ross Housewright, and Andrew McDiarmid


Business historians have tied the rise of U.S. corporations to the development of marketing and marks, while economic historians have emphasized the contribution of stable economic institutions (and, by extension, intellectual property law) to the growth of such firms. It can seem that the growth of modern brands reflects an inexorable line of organizational and institutional progress from 1870 to the present. Such accounts generally fail to explain that U.S. law and property in marks in the late nineteenth century was anything but stable. State law was intermittent and variable, while federal law, passed in 1870 under the "progress" clause of the Constitution after 10 years of trying, was within another 10 years ruled unconstitutional. In the business world, the ruling was met with shock. Attempts were made to have the law reinstated or a constitutional amendment passed. Neither succeeded, and from 1881 federal courts offered protection primarily to foreign firms and Indian tribes, neither particularly central to the conventional accounts of growth, or under common law, which had long been dismissed as inadequate and cumbersome. This paper will examine the quarter century of confusion until a defensible federal law was finally passed in 1905. Focusing on the relationship between business practice and the law, it will look at legislation, litigation, and registration, both nationally and internationally. It will explore the influence foreign law exerted in the US. It will look at trade mark litigation both in the U.S. and abroad involving both U.S. and foreign firms. And it will draw on comparative registration data compiled from national and international trademark publications and archival sources, from Champagne to Sacramento. In the process, it will question some common assumptions about the contribution of intellectual property law in general and trade mark law in particular to economic activity.