1.1. The History Of Trademark Law
The marking of goods for various purposes, including identifying them from those of other traders, dates back to ancient times. In the same way, the existence of rules governing the use of such marks goes back to the medieval craft guilds. A "trademark for commercial goods" necessarily requires commercial goods; in societies based on the barter system, therefore, there was no basis for "trademarks for goods." Trademarks not only identify goods, but create a distinction between goods from various sources. Consequently, a competitive relationship exists, and an overly simplistic mark is insufficient to be a trademark. The trade of goods came into practice long ago, and the use of trademarks is thought to have evolved from that. The origin of trademarks can be traced back as far as the beginning of the circulation of goods. The history of marks is nearly as old as the histories of mankind and religion. Scientists have come across excavated artifacts from places such as ancient Egypt with various symbols carved thereon for religious and superstitious reasons. "Potters marks" appeared in relics left from the Greek and Roman periods and were used to identify the maker (potter) of a particular vessel). Among those who specialize in researching the cultural heritage of marks, the studies surrounding "potters marks" are famous. It would be difficult, however, to say that these marks are trademarks in the sense of the modern meaning. Over time, different methods of identification and distinction developed. Loved ones and pets were given names. "Proprietary marks" (in the form of a name or symbol) were affixed to goods to enable one person to distinguish their own possessions from those of others. Craftsmen applied their names, unique drawings, or simple inscriptions to identify goods they created. Even though these marks surely helped in distinguishing goods, it is difficult to say that these marks were trademarks with distinctiveness in the modern sense of the word. Symbols on goods used in ancient Rome and other countries near the Mediterranean sea had similar characteristics to the trademarks of today. Because this ancient region is considered to be the first to actively circulate goods, it is widely thought that trademarks evolved in response to the emergence of a society in which goods circulate in commerce. However, even in those days, a trademark system based on property rights did not yet exist. Around the 10th century, a mark called a "merchants mark," appeared, and symbols among traders and merchants increased significantly. These marks, which can be considered one kind of "proprietary mark," essentially were used to prove ownership rights of goods whose owners were missing due to shipwrecks, pirates, and other disasters. Even now, in every part of the world, horses, sheep, and other animals are still branded with a mark identifying the owner. In Japan, a symbol is affixed to lumber that is tied onto a raft and sent down a river to its mouth. These types of marks are reminiscent of the "merchant's mark" of the past. In guilds of the middle ages, craftsmen and merchants affixed marks to goods in order to distinguish their work from the makers of low quality goods and to maintain trust in the guilds. These marks, known as "production marks," served to punish the manufacturers of low quality goods for not meeting the guild's standards and to maintain monopolies by the guild's members. These production marks helped consumers to identify and assign responsibility for inferior products, such as, goods short in weight, goods comprised of poor quality materials, and goods made with inferior craftsmanship. Because these marks were affixed out of compulsion or obligation, rather than one's own self-interest, they also became known as "police marks" (polizeizeichen) or "responsibility marks" (pflichtzeichen). They acted not only to distinguish between sources of goods, but to...
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