A mark of distinction: Branding and trade mark law in the UK from the1860s

John Mercer*

Queen Mary, University of London, UK

The development of branding is a neglected theme in business history. Thisarticle examines the emergence on a large scale of the unique product brandname distinct from a company name or product descriptor in the UK inthe later nineteenth century. It looks at the interaction of branding strategiesand UK trade mark law, which is shown to have accorded property rights inword-based marks only gradually and shaped the development of branding inthe UK. Trademark application data from the 1870s to the 1920s is cited toillustrate the widespread take-up of the brand name in the UK from the 1880s,and to consider its use by dierent types of consumer goods rms. The articlethen analyses the eects of such branding into the twentieth century, includingits contribution to competitive advantage, the introduction of brandarchitecture, and the problem of brand genericisation. It is argued that theadoption of the brand name marked a major shift in brands, from descriptionsof origin to objects of artice.

Keywords: branding; brand names; trade marks; brand architecture

It is important that we get a good pat name, wrote Henry Wellcome to his businesspartner, Silas Burroughs, in October 1883. Wellcome insisted that security of thename through the trade marking of product names was essential to help combatimitations of Burroughs Wellcome and Co.s drugs that were coming out sorapidly.1 In the UK, use of the pat name as Wellcome called it the uniqueproduct brand name developed alongside the codication of trade mark rights inthe later nineteenth century. Distinct from a company name or makers mark, thebrand name may be dened by several attributes: it is invented specically as aproduct name, rather than comprising a company or a family name; it is a non-descriptive word-based trade mark, always succinct and often consisting of a singleword; and it is abstract in form, usually characterised by being either a newly coinedword such as TABLOID, BRASSO, OXO or an existing word used out of context LIFEBUOY, MARMITE, ROBIN.

Today, multiple branding formats, whether corporate brands, family brands,sub-brands, or stand-alone brands, are essential components of marketing strategy.Brand management rests on selecting from dierent forms of branding, ranging from

*Email: jj_mercer@msn.com

Business History

Vol. 52, No. 1, February 2010, 1742

ISSN 0007-6791 print/ISSN 1743-7938 online

2010 Taylor & FrancisDOI: 10.1080/00076790903281033

http://www.informaworld.com

overarching family or umbrella brands that subsume each product under a singlename (such as in the case of Heinz), to the stand-alone product brand (as used byrms such as Unilever). And brand architecture is used as a tool for mapping andorganising a rms brand hierarchy and portfolios, and as a basis for launching newbrands. The value of stand-alone brands within a rms portfolio, each with itsown distinct positioning and target market, is well recognised (Aaker, 1996, 2004;Keller & Lehmann, 2006; Keller, Aperia, & Georgson, 2008; LaForet & Saunders,1994). This article will examine how this form of branding developed and wasincreasingly adopted in the latter nineteenth century, and how its value was utilisedby marketers well into the twentieth. During this period the brand name marked theincreased separation of company names and product brands; this autonomyfacilitated the distinct branding of individual products within a portfolio and, inturn, the concept of brand architecture.

It is important to note the essential distinction between a trade mark and abrand. The former is the tangible item of intellectual property the logo, name,design, or image on which the brand rests. But brands also incorporate intangiblessuch as identity, associations, and personality, and are, as Schwarzkopf (2008) notes,essentially identity systems, encompassing a personality, a relationship, and animage in consumers minds.2 The emergence of the brand name was a highlysignicant stage in the sophistication of branding. It constituted not only aseparation of corporate and product brands, but also a move from names based onterms of provenance or description to invented or abstract brands. As an item ofdeliberate construction, the brand name could be imbued with evocations,associations, or references although, as this article will outline, it was limited inthis respect by trade mark registration conditions. With this (relative) freedom toinnovate, the adoption of the brand name foreshadowed modern branding and itsincorporation of the abovementioned intangibles.

In discussing brands, however, business historians have tended to overlook theemergence of dierent branding forms, resulting in a tacit implication that thesevarious forms have historically existed alongside one another. Recently, for instance,Moore and Reid (2008) argued that brands and branding have existed for as long asit has been possible to trace artefacts of human existence; but such an argumentoverlooks nuances and shifts in the types of brands and branding employed overtime.3 And Wilkins (1992, 1994) has discussed the role of the trade marked brand inoering a proxy face to the consumer on behalf of the otherwise depersonalisedmodern corporation, and when and why brand names developed in food and drink;yet, in both papers, Wilkins refrains from disinterring brand names from companynames, and focuses on changes in the role of trade marks while ignoring the equallysignicant shifts in the nature of the marks themselves.4

There has been limited recognition of the development of dierent brandingforms in histories of trade marking. Higgins and Tweedale (1995, 1996), for instance,have discussed specic aspects of trade mark legislation on the particular product-marking requirements of the cutlery, tool, and textile trades (see also Jones, 1986).Duguids (2003) discussion of brands in the supply chain in the nineteenth-centuryalcohol industry has noted the utility of invented brands in masking ownership of thechain. Meanwhile, legal histories of trade marking by Bently (2008a) and Annand(2000) on the formal conceptualisation of a trade mark have outlined thedevelopment of the denition of a registrable mark from the law-historyperspective.5 And Cratchley (2000) has looked at the legal issues that brand owners

18 J. Mercer

have historically faced in registering marks, including the choice between umbrellaand individual product branding, but has overlooked the context of the changingdenitions of a trade mark and the specic emergence of the brand name.

This article employs material from the archives of brand owners and advertisingagencies, commissioned rm histories, trade mark registers and journals, parlia-mentary committee reports, trade mark legislation, and accounts of legal trials (bothreported and un-reported6). It cites examples from the food, medicines, householdchemicals, tobacco, and alcoholic drinks sectors in its discussion of branding history.Non-durable consumer goods were at the forefront of trade marking in the earlyyears of registration, and in building nationally-advertised brands in the secondindustrial revolution. Today many of these products are termed FMCGs fast-moving consumer goods but even in the nineteenth century these types of goodswere marked by frequent, cheap, and quick purchase, characteristics whichdemanded easily recognised, trusted brands.7

This article will begin by noting the inuences from business, other countries,case law, international agreements, and the Patent Oce on legislation thatpermitted the registration of brand names as trade marks; major UK trade marklegislation was passed in 1862, 1875, 1883, 1888, and 1905, and these Acts are thesubject of this articles rst main section. Subsequently, this article reaches furtherinto the twentieth century, to assess statistically and through case studies the take-upof brand names up to 1926. It then considers the brand names consequences,including brand genericisation, single-line marketing, and brand architecture,though to the 1930s. It concludes by noting the fundamental shift in the nature ofbranding embodied by the abstract brand name.

Prologue: early brands

As this article will show, the brand name began to achieve wide usage in the UK inthe last two decades of the nineteenth century. It must be noted, however, that someBritish rms were making use of the invented product name prior to the 1880s,among the most notable users being the tobacco companies. Firms such as W.D. andH.O. Wills developed individually-branded products from the 1860s, using abstractnames such as BLACK JACK, HONEY FLOWER, NEC PLUS ULTRA, and PASSING CLOUDSto dierentiate blends of tobacco (Alford, 1973, p. 125).8

Alongside these brands, many other nineteenth century product names consistedof simple possessive/descriptive titles. While rms employed distinctive, oftenelaborate, visual logos, product names commonly consisted of the owners surname,or sometimes the name of a locale or the inventor of a product, coupled with adescriptive phrase. GLENFIELD STARCH, GOODALLS YORKSHIRE RELISH, CROSSE ANDBLACKWELL, BIRDS CUSTARD, LIEBIGS EXTRACT OF MEAT, and LEA AND PERRINSSWORCESTERSHIRE SAUCE are examples of such brands in the consumer goods sector.However, each of these components the proprietor name and the productdescription faced challenges, both prior and subsequent to the introduction offormal trade mark registration in the UK on 1 January 1876.

Legislation and case law

The relationship between business practice and trade mark law was multi-layered, involving legislative procedures, court cases, the judgement of the

Business History 19

Comptroller-General of Patents, Designs and Trade Marks, and day-to-day businessexigencies. Investigations by parliamentary committees preceded most majorlegislation on trade marks, and these provided brand owners with a platform topush for reform in their favour. Between such occasional enquiries, case law arisingfrom trade mark claims records that rms pressed to shape the interpretation andimplementation of legislation. Additionally, the Comptroller of Trade Marks wasrequired to implement sometimes ambiguously worded legislation and rule upon theadmissibility of trade marks. Finally, rms faced the shorter-term exigencies ofbranding their products in accordance with ocial strictures.

While recognising each of these contexts, this section will concentrate onoutlining the laws shifting denitions of a registrable trade mark. As trade mark lawcame to deem components of the possessive/descriptive brand non-protectable, itincluded conditions for the registration of other word marks. It will be shown thatthe particular denitions of a trade mark in law shaped the form of the brand namein the UK.

Before registration

Until 1876, there was no national registry of trade marks in the UK; consequentlythere was no such oence as trade mark infringement. Action could be taken,however, where it was claimed that a trader was attempting to deceive purchasersinto believing they were buying the goods of another manufacturer. And it was insuch a court action in 1853 that judgment appeared to settle the issue of rivalmanufacturers using identical surnames as brands. Burgess v. Burgess was an actiontaken to prevent the passing o of goods as BURGESSS ESSENCE OF ANCHOVIES. Thename was used by both father and son in separate businesses, and the action wastaken by the father to prevent its use by the son, who had recently established hisbusiness. The dispute resulted in a judgment that, in the absence of fraud, the soncould not be prevented from using his own surname, so establishing that rival rmsmay legitimately use identical titles so long as they each have an owner with such aname.9

Commonly used names also faced the problem of becoming publici juris:incapable of exclusive ownership. In 1867, it was held that the name LIEBIG waspublici juris, as the name had become attached to a recipe that had been made public,meaning its use by multiple rms was deemed legitimate.10 Just as for users ofsurnames, problems arose for brand owners using location based names. In 1870, inWotherspoon v. Currie, it was judged that the proprietors of GLENFIELD STARCH didnot have exclusive use of the location name GLENFIELD, and that othermanufacturers in the area were entitled to use it descriptively.11

A few years earlier, ahead of the UKs rst proposed national legislation on trademarks in 1862, a parliamentary select committee was convened to investigate variousissues surrounding marks: what constituted a mark; whether a mark could beinvested with property rights; whether registration should be introduced; whetherthere should be a central registry and if so what powers should be given to theRegistrar; the various problems of trade mark infringement, and many other issues.The committees report published with full transcripts of the evidence given beforeit conveys a sense of business owners, legislators, and legal experts all struggling tograpple with the denition of a mark and where the boundaries of rights lay. Therewas, for example, some apprehension expressed over the investing of property rights

20 J. Mercer

in trade marks: I confess that I rather tremble at the consequences of universallymaking a property out of those miserable marks, said Samuel Morley, a trader inthe City.12 The issue of the assignment of marks resulting from property rightsfeatured in discussions, with some concerned that this could result in consumersbeing mislead as to the origins of a product.

In the evidence given before the committee, there is little indication of the brandname featuring in British industry, and the particular issue of the articial brandname is not discussed. Even the representative of brands such as GLENFIELD STARCHand VICTORIA LOZENGES appeared to view the trade mark as a combined device,agreeing that a registrable mark should have a particular emblem, and the name of[the] rm besides, and not be simply a name or other word.13 After publication ofthe report in 1862, Parliament backed the passing of a Merchandise Marks Act thatmade illegal the false marking of goods or imitation of trade marks where it waswith intent to defraud or to enable another to defraud. The Act did not, however,introduce a system of trade mark registration to conrm ownership of marks.Consequently, formal denition of a mark was avoided; that was to fall to the TradeMarks Registration Act of 1875.

After 1875

By the time of the 1875 Trade Marks Act, other countries had been registeringwords and invented brands as trade marks for some time. In France, for example,trade mark law from 1824 permitted registration of noms imaginaires, although thispertained only to the imaginary names of rms rather than brand names until 1857,when invented product names were allowed to be registered (Duguid, 2009). Andwhen the US introduced federal trade mark legislation in 1870, it dened a trademark liberally as a distinctive word, mark, emblem, design, symbol, or device(Hopkins, 1905, p. 3). Such freedom was not to be seen in the UK until several yearslater.

With its denitions of a registrable trade mark as a distinctive label, . . . a deviceor mark or name printed in some particular manner, and a written signature the1875 Act dened the trade mark as a visual, rather than textual, item; words wereeectively registrable only once they had been inscribed into a form of logo.14

However, the Act of 1875 made complete exemption for the registration of oldmarks those that had been in use prior to August 1875 which were permitted tobe any letters, words, or gures, or combination of letters.15 There was, therefore, adivision between previously used marks, which were virtually guaranteed registra-tion, and newly-coined trade marks, which had to satisfy the criteria for registration.The inability to register newly-coined words was soon conrmed in case law: in anappeal to court in 1876 at the Patent Oces refusal to register AEILYTON, it wasjudged that although the Trade Marks Registration Act made provision forregistration of old distinctive words, there was no possibility of registering suchwords coined after the passing of the Act.16

Even for old marks, however, legal judgment tended to encroach on any claimedexclusivity of words, and this particularly aected possessive/descriptive wordmarks. Cases such as Brand and Mason v. Mason in 1877 conrmed the opinionexpressed 24 years earlier in Burgess v. Burgess. In the later case the defendant,Brand, had entered into business with a partner named Mason, apparently in orderto claim legitimate use of the title BRAND AND MASON, the name of one of the leaders

Business History 21

in the meat extract market. The genuine Brand and Mason took action to preventthis, but it was held that the court could not restrain the sale of products in acompany owners own name.17 The second component of this form of brand theproduct description proved to be equally vulnerable for old marks. In 1876, forinstance, the term WORCESTERSHIRE SAUCE was judged to be open to use by anyrm, owing to its common use.18 Similarly, YORKSHIRE RELISH was declarednon-protectable as a trade mark in a series of trials that extended from 1878 to1893.19

After 1883

In 1883, the brief 1875 Act was replaced by a more detailed Patents and Trade MarksAct. Registration was now also permitted for brands, which were still considered tobe an imprint upon the goods themselves. In 1891 it was adjudged that somelimitation must be put on the word brands. It could not mean any mark which wascapable of impression on goods. There must be some evidence to show it was to beused as a brand and a brand only.20 The 1883 Act also reduced the cost of anapplication for registration of a mark, and permitted old marks consisting of a singleletter to be registered. But, more importantly for the development of modernbranding, the new Act shifted the denition of a mark away from a solely visualdesignation and incorporated a textual denition, enabling words to be registeredwithout a requirement that they be inscribed in a particular manner.21 The keycomponent here was the inclusion of a new rather opaque designation of fancywords not in common use.22

In his Annual Report for 1884, the Comptroller-General of Patents, Designs andTrade Marks recorded that this change [the fancy words clause] was introduced notonly to meet the requirements of British merchants, but also with a view ofharmonising the English denition of a trade mark with that of many foreigncountries.23 As early as 1870, remember, the US had introduced nationalregistration for any distinctive word as part of its Trademarks Act. Moreover,synchronous to the UK legislation of 1883 was the signing of the Paris Conventionfor the Protection of Industrial Property, which granted reciprocal rights forregistration by citizens of the participating states.24 Although the UK was not anoriginal signatory to the Convention, it became party to the treaty when it came intoeect the following year (World Intellectual Property Organization, 1997, p. 359).25

Whether the Comptroller was making reference to changes intended to movetowards an accord with the participating countries is unclear, but the ParisConvention did not specically require revision of trade mark denitions in domesticlaw.26

For UK rms, the fancy words denition was to be signicant, being the rstprovision for the registration of new word-only trade marks. Initially, wide scopewas given for registration of words under this clause, with the Comptrollerregistering extant words such as DOMESTIC for tea and phrases such as THE SELFWASHER for soap. Following a conference with the Board of Trade, which oversawthe Patent Oce, in 1884, it was agreed that extant words should be permittedregistration only in the denite form (i.e. preceded by THE), on the ground that itindicated a special use of an ordinary word.27 In 1885 the Patent Oce acceptedword marks such as THE COMET, THE CHALLENGE, THE EGYPTIAN, and THE ATHLETIC.Almost any dictionary word was passed for a long time, where the applicant would

22 J. Mercer

consent to prex the article, noted John Whittle of the Board of Trade.28 In January1885, however, Stapley and Co. applied for the word ALPINE and refused theComptrollers request to attach the denite prex. On appeal to court it was judgedthat the word Alpine is not itself a fancy word, but the application of it to cottonembroidery is shewn by the evidence to be novel and fanciful, and that the mark wastherefore capable of registration under the 1883 Act.29 Fearing this would open theway for all geographical words to be registered, the Board of Trade took legal adviceand on 7 July 1885 issued instructions to the Comptroller to henceforth implement afar stricter interpretation of the term fancy words.30

Thereafter, the provision for registration of words was signicantly reduced.Over time, fancy words was judged to exclude any dictionary words or com-binations thereof, geographical locations, descriptive terms or those importing somemeaning, foreign words, and even ordinary words with what was deemed to be acommon termination (such as INE) appended.31 Through these exclusions, thefancy word denition eectively came to mean a word of original invention thatimported no meaning. As Annand (2000, p. 115) notes:

Amongst the successful was BOVRIL for food, MAZAWATTEE for tea, and OOMOO for wine.The unsuccessful included APOLLINARIS for mineral water, COMPACTUM for umbrellas,TOWER for tea, and CYCLOSTYLE for stationery and duplicating apparatus.

In spite of the complexities involved in implementing the legislation, this period sawthe rst wave of widespread brand naming. Once the denition for a registrablemark had widened to include fancy words in 1883, many rms sought to secureownership of word-based marks by inventing brands that were distinct from theircompany name or existing product line.

After 1888

In 1887, Lord Herschell chaired a committee investigating intellectual propertyrights, with a view to proposing amending legislation. In evidence before thiscommittee, the Comptroller-General of Patents, Designs and Trade Marks admittedto continuing uncertainty over eligibility under the fancy words denition. It is amost dicult thing to know what to do, he stated, We have had a great deal oftrouble with new words which come very near dictionary words. Another witnessremarked that what is, and what is not, a fancy word is a matter of very greatdiculty . . . the Comptroller has now to determine upon some hundred of wordmarks which are before him.32

Meanwhile, the committee was told of the apparently restrictive nature of thetrade mark laws. It heard from the Comptroller of Trade Marks that under theexisting denitions he may have to refuse to register [word] marks which really maybe good enough for trade purposes. Evidence from the Trade Mark ProtectionSociety on behalf of business owners attested that the trading community is in sucha state of uncertainty that at the moment there is not the least possibility of knowingwho has and who has not a good trade mark.33 The TMPS urged particularclarication of the use of word marks that may be interpreted as indicating the originof a product, arguing that the law needs settling under some limitation, or to beentirely discarded.34

The Herschell Committees report described the renement of the fancy wordsconcept as the most dicult question which has arisen, and went on to state:

Business History 23

Words are, undoubtedly, a most popular form of trade mark, but some limit must beput upon the words which an individual may be permitted to register and claim theexclusive use of. There can be no objection to permitting the registration of an inventedword. It seems to us further that existing words may with advantage be permitted astrade marks subject to limitations. It is manifest that no one ought to be granted theexclusive use of a word descriptive of the quality or character of any goods. Such wordsof description are the property of all mankind, and it would not be right to allow anyindividual to monopolise them.35

Echoing the strictures of previous legislation, the committee was therefore reluctantto grant brand owners exclusive use of descriptive words by allowing their registra-tion as marks. Such caution also extended to marks consisting of a combination ofthe applicants name with the article he manufactures or sells. It would be wrong,the committee argued, to give a right to prevent another manufacturer or merchanthonestly describing his own goods by his own name. This conrmed the non-registrability of the possessive/descriptive trade mark.36

In clarifying the issue of registrable words, the Herschell Committee attempted toresolve the problems faced by both the Comptroller and trade mark owners bytaking a liberal approach to the denition of word marks. The committee listed theelements which precluded a mark from formal registration rather than deningprerequisites as earlier Acts had. Consequently, the amending Patents and TradeMarks Act of 1888 allowed the registration of any word or words having noreference to the character or quality of the goods, and not being a geographicalname; it also redened fancy words as invented words.37 This clarication andliberalisation thus deemed extant words acceptable as new trade marks for the rsttime, opening up a large pool of potential brand names.

In addition to providing evidence before parliamentary committees such as thatheaded by Herschell, rms also used the courts to press for clarication orredenition of trade mark law in case law. A notable case occurred in 1896, when theEastman Photographic Materials Company attempted to register the word SOLIO forphotographic paper. It found its application initially refused on the ground that SOLmade reference to sunlight, and so was descriptive of the character or quality of thegoods. On appeal to the House of Lords it was judged that any such reference was sooblique as not to disqualify registration of the mark.38 As a consequence of the trialsoutcome, the Patent Oce was forced to revise its procedures, and issued anotication to potential applicants that the practice of the oce as to inventedwords will be modied in accordance with those opinions, heralding a less stringentapplication of the denition thereafter.39

After 1905

Case law, in turn, contributed to subsequent legislation: a new trade mark Act in1905 eectively codifying the SOLIO decision to allow greater leeway in registeringinvented words. Again, the pool of potential word marks was widened. As with theprevious Acts, businesses generally appeared to support liberalisation in thedenition of registrable word marks, with the parliamentary committee appointedto draw up the legislation reporting:

Evidence was brought that there was demand for greater latitude in the denition of atrade mark. It was suggested by one witness that when a word is presented for

24 J. Mercer

registration it might be broadly considered: Is this a word that may or may not bereasonably wanted for use in trade? Your Committee, though not prepared to accept sobroad a generalisation, are of the opinion that further latitude is desirable.40

The principal complaint put forward by business owners was of the strictinterpretation of word mark denitions by the courts, with judicial decisions onsurnames and geographical references proving to be sources of particular contention.The committees chairman concluded that the commercial community are justiedin their criticism that the Courts have interpreted the existing regulation rather toostrictly:41

Supposing for instance you wanted to register the word rainbow . . . if they nd a MrRainbow they will not allow it. . . . In the case of Magnolia it was held to be ageographical name because somewhere in Florida there was a village called Magnolia.42

These complaints echoed an observation made a decade earlier by the United StatesRegistrar of Trademarks in a note to the UK Comptroller: our courts lean to theside of liberality perhaps too much so, while yours lean perhaps excessively to strictconstruction.43

Consequently, the 1905 Act further liberalised the denition of a mark. Onlywords making direct reference to the quality or the character of goods were nowforbidden. There was also some relaxation on references to geographical locations,while the use of (most) surnames as word marks was outlawed: marks could not beaccording to ordinary signication a geographical name or surname. The Act alsomade provision for the registration of any mark adapted to distinguish the goods ofthe proprietor of the trade mark from those of other rms.44

Finally, in the period under review, the 1938 Consolidation Act gave com-prehensive protection to the invented fancy words that had heralded the widespreaduse of brand names after 1883. This Act permitted the defensive registration ofwell-known invented brands for products in which the registrant did not trade norintend to trade so trade mark owners could register their specially-coined names inany or all classes of products.45 Somewhat belatedly, then, this facilitated completeprotection from infringement for the invented brand name.

Such a tardy provision for the kind of fancy words rst allowed in 1883 typiedthe UK legislatures reluctance to aord or extend rights in word-based trade marks.The evidence of parliamentary committees from 1862 onwards shows a continuingstruggle to dene a trade mark in a manner which would not grant brand ownersexclusive use of extant words.

As a consequence of the particular denitions in trade mark law, we can see twophases of large-scale brand-naming. First, the fancy words characterisation in the1883 Act demanded innovation from brand owners who wanted to register new wordmarks. Particularly as the interpretation of the fancy words clause became morerestricted over time, rms increasingly created brands that would be deemed originalinventions. This period saw the beginnings of widespread use of the articial brandname, although imprecise denition and shifting implementation constrained itsform. Second, the claried denition of registrable word marks after 1888 and therelaxed conditions from 1905 facilitated a further phase of branding, with greaterfreedom to use existing words and, from 1905, to import indirect references.

Across the period, then, new brands tended to move from product descriptions toabstract inventions, then extant words, and nally oblique references. Thisevolution, from a description of origin to an object of artice, was a fundamental

Business History 25

shift in branding and the purpose of a brand. The extent to which these newopportunities were taken up by businesses is the focus of the following section.

The take-up of brand names in the UK

Quantitative data

In order to measure the adoption of the brand name, data on applications for trademarks in selected years has been gathered, and these are represented in Figure 1 andTable 1. The rst sample consists of the rst 300 marks advertised in the TradeMarks Journal in each of the years 1876, 1877, 1883 to 1889, and 1906, 1916, and1926. Although 300 marks is a relatively small sample from the annual registers, thisquantity allows for a continuous sample from 1876, when registrations numberedonly 454, through to their peak in the 1920s, when there were routinely 7000registrations per year (Duguid, et al., in press); moreover, it is, to date, certainly themost detailed study of the nature of registered trade marks. The sample has beenanalysed for two trends: the change in the proportion of applications made up byword marks (as opposed to logos or other visual devices, which may incorporatewords but are not solely word marks) and the number of these that are of the novelbrand name type (e.g. PHENOZONE or APEX).46

Data from the rst year of trade mark registration, 1876, conrms that brandnames were already in use by this time, comprising 12% of all trade markapplications, and around half of word marks. But further scrutiny of the data showsthat these types of marks were relatively recent arrivals. Of the old brand namesapplied for in the sample, the average declared age of the marks is 3.8 years, with theoldest brand name (PEDIGREE) having been in use for 15 years prior to 1875; thiscompares with an average declared age of 16.8 years for all other word marks(surnames, initials, town names etc.), the oldest of these (JAS. McCABE) being 70years old.

1877 saw similar proportions of word mark and brand name applications, but by1883, owners of old marks had been given ample time to register their word marks,and, consequently, this year saw a negligible number of applications (and each ofthese was old). The trade mark legislation passed that year came into force inJanuary 1884 (the month from which the sample data was taken) but there is anapparent lag in the data on registrations of new word marks. This may reect thePatent Oce grappling with the new denitions imposed on it, or businesses takingsome time to utilise the new opportunities in registration.

Figure 1. All word marks and brand names as percentages of applications.Source: Trade Marks Journal: rst 300 advertised applications each year.

26 J. Mercer

By 1885, not only has the proportion of brand names signicantly risen, buttheir share of word marks has increased from around one-half in 1876 and 1877 toaround two-thirds. By the end of the century virtually all word mark applicationswere for brand names, owing to the outlawing of new possessive/descriptive marksin the 1888 Act. Overall, proportions of both total word marks and brandnames rise after periods of legislation, and increase substantially from the 1890s.From a negligible number or word marks (and brand names) in the early 1880s, thesetrade marks came to comprise over 60% of total trade mark applications in the1910s.

To oer some context to the early UK gures, samples of the rst 300 marks havebeen taken from similar US data for 187047 (the rst year of national registration),1871, and 1875. In the US sample for 1870, brand names made up only 3% of alltrade mark applications, and all types of word marks comprised 11% of totalapplications. But in the following year, brand names rose to make up 17% of allapplications, with all word marks comprising 44% of the total. And by 1875 brandnames made up 46% of all trade marks in the sample (compared to the UKs 12%the following year), and all types of word marks made up 86% of applications. TheUS data shows a rapid increase in brand name registration over the rst few years,implying a growth in this type of branding during the early 1870s, and this concurswith the relative youth of most brand names in the early UK data.

Table 1 utilises rm-level data on trade mark applications to explore the use ofthe brand name by a handful of consumer goods companies in benchmark yearsspanning 50 years from 1876. On occasion this data appears to contradict the trendsin the aggregate data discussed above: whereas Figure 1 shows an increase in brandnaming by 1896, Table 1 shows a decline in numbers but the latters sample for thatyear is very small. There are, however, concurrences between these two data sets,with both showing increases in applications for brand names by 1886 and 1906. Butthe rms listed in Table 1 were not sampled to form a microcosm of the trade markregister; these companies were chosen as successful, long-lived rms that were early,heavy, and frequent trade markers over most of the period under consideration. Interms of trade mark protection, brand longevity, and product innovation, many ofthese rms were leaders in their sectors, and so may be expected to have beeninnovators in branding.

Within this sample, food companies applied for a total of 38 other markscompared to 17 brand names over the period, a rough ratio of 2:1 against brandnames. Some food rms, such as Lea & Perrins and Brooke Bond, continued to usepossessive/descriptive brands on their products while registering label designs andvisual devices (rather than words) as trade marks. Others, however, including theLiebig company that created the OXO brand, made a number of brand nameregistrations. Elsewhere, two medicine rms Allen & Hanburys and BurroughsWellcome together made 29% of all the brand name applications in the sample,implying an association between brand and product innovation. Yet the alcoholicdrinks sector, in which a perception of product novelty tends to be unimportant ifnot detrimental, was a similarly large user of brand names if the wine merchantsGonzalez Byass were typical. This rms brand name registrations are notable alsofor their early use, with 15 of them achieving registrability as old word marks in1876; like the tobacco rms, wine merchants appeared to be making use of the brandname for product dierentiation before its widespread take-up by other sectors in the1880s.

Business History 27

Table1.

Types

oftrademark

applicationsbyselected

consumer

goodsrm

s,18761926.

Firm

Product

type

1876

1886

1896

1906

1916

1926

Totals

Brand

names

All

other

marks

Brand

names

All

other

marks

Brand

names

All

other

marks

Brand

names

All

other

marks

Brand

names

All

other

marks

Brand

names

All

other

marks

Brand

names

All

other

marks

Allen

and

Hanburys

Medicine

27

92

718

9

Apollinaris

Mineralwater

42

11

11

8Bass

Beer

61

11

7BrookeBond

Tea

11

21

05

Burroughs

Wellcome

Medicine

57

214

0

Crosseand

Blackwell

Sauces

23

31

44

9

DayandMartin

Polishes

41

14

GonzalezByass

Wine

15

30

121

116

52

Gossage,W.,

andSons

Soap

821

16

11

29

31

Lea

andPerrins

Sauces

61

07

LiebigsExtract

ofMeat

Meatextracts

61

24

15

9

Peek,SirH.W

.Groceries

13

31

PeekFrean

Biscuits

12

31

23

57

Total

15

57

22

49

18

20

14

13

36

18

77

149

Combined

total

72

71

934

16

24

226

Brandnames

as%

oftotal

20.83

30.99

11.11

58.82

81.25

25

34.07

Source:TradeMarksJournal.

NB:Allother

marksincludes

non-brandnameword

marksaswellaslabeldesignsandvisualdevices.

28 J. Mercer

The rm-level data therefore indicates strength in brand naming in both con-sumer chemicals (such as medicines) and alcoholic beverages. Through case studies,the following section explores in more detail brand naming by these sectors and theapparent contradictory use of the brand name as signaller of novelty and indicator ofheritage and provenance.

Case studies

As brand names came to be applied to new products from the 1880s they inevitablycame to be linked to innovation, and used to signal novelty to the customer. Amongthe heaviest users of the stand-alone brand name was the consumer chemicals sector,which incorporated substantial product development and novelty. Before the 1887Herschell Committee, the manager of the Trade Mark Protection Society noted that,the soap trade lately have had a very large number of marks . . . they register say 50good word marks, as they consider them.48 As its competitors recognised, LeverBrothers was an early UK adopter of the single-word brand name:

Long before Levers time perfumers and soapmakers, including Croselds, had beenproducing tablets of toilet soap, stamped with fanciful names, such as so-and-soshoney, primrose, musk or almond soap. Lever . . . used a distinctive brand Sunlight dierent from the traditional names, which were not proprietary andusually had reference to colour, scent, or quality. Sunlight was purely and simply atrade mark. (Musson, 1965, p. 101)

SUNLIGHT was launched as a range of soaps in 1876, and from the mid-1880s wasapplied to a new, pre-wrapped brand of soap, along with the phrase THE SELF-WASHER, which was registered as a separate trade mark in 1883 (Wilson, 1970, pp.2729).49 The early adoption of such a brand long before the Acts of the 1880sfacilitated word mark registration underlines Levers leadership in branding in theUK. Abroad, however, similar consumer goods rms were already dierentiatingtheir products with unique brand names. In the US, the 1872 trade mark registershows rms registering brands such as DIAMOND, WHITE LILLY, and PEERLESS forsoap, and BEARINE, ROSEBAUME, and ALPINA for perfumery. To take a prominentexample, in 1879, the Procter & Gamble company changed the descriptive name ofits oating WHITE SOAP shortly after its invention to IVORY brand, before launchingother branded products, such as LENOX, a new laundry soap, in the early 1880s(Editors of Advertising Age, 1989, pp. 911). P&G, and other American rms, hadthe advantage of being allowed registration in the US of word-based trade marksfrom 1870, which may explain their apparent preguring of brand naming overBritish rms, who adopted the brand name on a signicant scale only from the1880s.

Following the success of SUNLIGHT, and after the facilitation of the registration ofwords in the UK, Lever developed a strategy of product dierentiation with distinctbrands oering their own clearly-dened selling points: LIFEBUOY disinfecting soap(1894), LUX soap akes (1899), and MONKEY scouring powder (1899) becamehousehold brands behind which the LEVER name was somewhat obscured. But inaddition to these few brands were many more trade mark registrations. Lever tookan active approach to word mark registration, sometimes submitting applications forhundreds of marks per year. One such year was 1897, seeing amongst many markswords such as HURLY BURLY, QUIVER, LUX, DIXIE, BUD, and HUMMER. Such was the

Business History 29

scale of Levers registration strategy that the rm made up 9% of all the UKs trademark registrations that year.50 The general policy of advance registration wascontinued into the next decade with 1904 seeing numerous registrations for words,including VIM and PLANTOL, both of which went on to become the names of Leverproducts.51 Consolidating its market share through the acquisition of rival rmsfurther added to Levers family of word marks: the company bought Hodgson andSimpson (1906), Hudson (1908) Hazlehurst (1911), Croseld (1919), and Gossage(1923), most of which had come to employ multiple brands in a similar manner toLever.

One of these rms, Joseph Croseld and Sons, had sought to imitate Lever bysidelining their company name in favour of single-line branding, usually, althoughnot always, for new products (Musson, 1965, pp. 101, 192).52 This began after thesuccess of Levers SUNLIGHT soap, when in 1885 Croseld adapted its existingPERFECTION PALE brand to simply PERFECTION for use on a new soap. As a singleword, however, PERFECTION was regarded as a new trade mark and Croseld wereunable to gain registration due to its laudatory nature. Even after the 1888 TradeMarks Act widened the denition of registrable words, PERFECTION remainedunregistered as it was deemed to be descriptive. Following the Trade Marks Act of1905, Croseld embarked on a lengthy attempt to gain registration of the word. TheRegistrar of Trade Marks refused the registration, as did the High Court, and theCourt of Appeal. In court, Croseld cited various other new brand names asjustication for allowing registration of its own brand: AZURE laundry blue, NECTARtea, ORIENT grocers, HEALTH cocoa, and OSWEGO cornour were brands cited insupport of the application.53 Ultimately, however, it was judged that some laudatorywords were not capable of being adapted to distinguish, such as best or perfectas they had no secondary meaning.54 The conditions on references to the quality orcharacter of goods as with previous restrictions came to be obstacles tocircumvent for rms seeking to create distinctive brands.

The household chemicals manufacturer Reckitt is a more successful example of arm shifting to stand-alone branding during the latter decades of the nineteenthcentury. It moved from using the RECKITT umbrella brand with descriptive titles suchas PATENT SOLUBLE STARCH and POWDER BLUE to unique brands such as ROBIN starchand ZEBRA grate polish. It was noted that once the decision was taken [to launch apolish] under a new name much debate took place as to what that name shouldbe . . . nally in 1890 Zebra was agreed upon (Reckitt, 1951, p. 49).55 Church andClark (2001, table 3) have identied 12 Reckitt products launched between 1890 and1914 which were given their own brand names, from ENAMELINE grate polish toBRASSO, MEPO, SHINIO, and SILVO metal polishes. With invented words such as these,alignment of brands became possible, enabling rms to brand their products in aconsistent format: following the creation of the BRASSO family of brands, forexample, Reckitt rebranded one of its ZEBRA products as ZEBO.

The importance of using the brand name to signal product novelty to theconsumer was most evident in household chemicals rms such as Reckitt:

In 1897 [Reckitt] negotiated the purchase of Macks Double Starch in this country andthe colonies. Having acquired it, their chemists set about improving it and suchconsiderable advance was made that it was decided to market the improved product as apowder under a new name they called it Robin Starch and it was an immediatesuccess. (Reckitt, 1951, p. 49)

30 J. Mercer

Similarly, in medicines the perception of novelty and innovation was important.Such was the extent of brand naming in pharmaceuticals that by the early twentiethcentury it was giving rise to complaints of the plague of fancy names. Acorrespondent to the Pharmaceutical Journal bemoaned:

Looking through the latest list of Old and new Remedies in last weeks PharmaceuticalJournal Inset I was struck by the fact that so many of the substances included in the listare simply well-known chemicals to which freshly coined names have been applied.Reference to previous lists discloses the fact that this process of re-naming has beenproceeding steadily for some time past. . . . Medicine and pharmacy are beingthreatened with an overwhelming ood of fancy names.56

The aforementioned Henry Wellcome of the Burroughs Wellcome drug companywas a keen employer of brand names, and he also noted that the increase of newlyinvented words appropriated as trade marks for patented chemical substances andregistered as trade marks in recent years has been marked.57 While his businesspartner, Silas Burroughs, had been acutely aware of the importance of establishing aperception among potential customers of distinctiveness for the rms products, itwas Wellcome who was keen to coin novel brand names after the passing of the 1883Act, and who devised the rms most famous brand name, TABLOID, in this period(Church & Tansey, 2007, pp. 4344). Many more invented words were thereafteradopted to dierentiate Burroughs Wellcomes products, and other large pharma-ceutical rms likewise adopted brand names, the German rm Bayer, for instance,registering HEROIN (1898) and ASPIRIN (1899) as trade marks for newly inventedmedicines. For respectable rms whose drugs were the product of research anddevelopment as for snake-oil salesman who hawked bogus patent medicines, theinvented name served to suggest unique and novel products.

While product innovation and dierentiation were common in the consumerchemicals sectors, new food products were launched with similarly novel names.When a new gravy additive was created by the Cerebos Salt Company in 1908, it wasgiven the name BISTO apparently an acronym for Browns, Seasons, and Thickens inOne. In 1890, after three years of trading, the proprietors of SMITHS PATENT PROCESSGERM FLOUR ran a public competition to nd a new, more concise name, and thisresulted in the creation of the HOVIS brand (Jenkins, 2006, p. 8).58 Likewise, the non-alcoholic beverage VIM TONIC was changed from its semi-descriptive name to aregistrable brand VIMTO shortly after its creation by John Noel Nichols in 1908(Nichols, 1994, p. 2).59 And when J. Lawson Johnston began marketing a new beefextract in 1886, he chose to give it the invented name of BOVRIL; this was in contrastto the verbose, descriptive, and ultimately un-registrable name of the then marketleader, LIEBIGS EXTRACT OF MEAT, which had seen many competitors oer similarlytitled meat products.60 When Liebig launched its own new beef stock in 1901, as acheaper variant of its original product, it departed from its core brand with theinvented name OXO. The use of a new brand name circumvented the problems Liebighad faced in defending its trade mark; and so successful was this new brand that itcame to enjoy greater fame and longevity than the original product.

Yet, for other industries, invented product brands served not as an indicator ofnovelty but as a marker of dierentiation between classes and varieties of ostensiblysimilar products. This was particularly the case in the alcoholic drinks sector, whereproduct innovation was traditionally not a primary consideration but where brandnames served to indicate or evoke provenance or blend. We have already seen

Business History 31

data on brand naming by the wine merchants Gonzalez Byass, who in 1876registered brands such as TIO PEPE, APOSTOLES, SEDOSO, and REINA. Additionally,Scotch whisky rms frequently invented location-based brands, a profusion of bogusGLENS being the result (Pacult, 2005, p. 142). And, in France, champagne rms hadlong marketed brands that were named after invented chateaux or imaginarynobility; by the mid nineteenth century champagne rms were pressing to get thenoms imaginaire clause in trade mark law applied to product brands, and not justcompany names (Duguid, 2009). For rms such as these, then, new brands wereoften imitation locations or invented names rather than newly-coined words.

The wine merchants W. & A. Gilbey were one English drinks rm that utilisedindividual product names to create evocative brands for wines and spirits. UnlikeFrench wine rms, however, Gilbey adopted this type of branding only in the laterdecades of the nineteenth century. In his history of the company, Alec Waugh (1957,p. 44) noted that by 1890, Gilbeys list quoted 192 brands of wine and 78 of spiritsand liqueurs. The creation of brands such as CASTLE GRAND whisky (1886) was theresult of a brand name strategy that had emerged in the preceding few years:

They were not [in the 1860s], as they are now, owners of proprietary brands of gin, portand sherry, Spey Royal and Red Breast whisky and Odds-On cocktail brands thathave become and have to be maintained as household words. (Waugh, 1957, p. 99)61

For merchants such as Gilbey, the individual product brand served to distinguishdierent blends, varieties, ages, and origin. Most importantly, the stand-alone brandwas used to evoke perceptions of authenticity in provenance, with Gilbey anxious,for example, that one of its clarets should have the appearance of emanating from aFrench Claret House.62 Sometimes the rm accompanied its brands with the GILBEYendorsement name, but more often employed them as stand-alones with anyacknowledgement of the proprietor noted discreetly on the label. Gilbey found thatits own name risked detracting from the contrived authenticity of its brands. Forexample, it decided in 1886 to omit its house name from Bordeaux labels of aFrench appearance so as to give the impression that the wine originated directlyfrom the Chateau Loudenne.63

Unlike brands based on a rm name, genuine location, or product description,the brand name, as an object of artice, could be designed to imply associations orevoke qualities. These evocations were, however, divergent in nature: for consumerchemicals rms brands signalled innovation, while for alcoholic drinks companiesthey implied provenance or heritage. The next section will look at the furtherconsequences of this shift in branding in both the immediate and long term.

The consequences of brand naming

So, the brand name could be used to signal product innovation (whether genuine orspurious). However, for innovators, the attachment of a unique brand name to a newproduct not only implied novelty to consumers, but secured competitive advantage:the use of new brands by rst-movers ensured there was no descriptive name forimitators to replicate. This contrasted with the failure of earlier companies such asLea and Perrins to devise non-descriptive names for which they could claim exclusiveuse.

This competitive advantage continued to be emphasised to rms into thetwentieth century. The J. Walter Thompson advertising agency impressed on clients

32 J. Mercer

the benet given to a product innovator by a trade marked brand name, andespecially the advantageous barriers to entry created by the use of a non-descriptive,and so non-imitable, brand:

It becomes dicult for another manufacturer to ride along on the tide by introducing asubstitute at a lower price because the original name is registered, and contains nodescriptive term like soap akes which can be duplicated by competition . . . A goodexample of this is Lever Brothers with products such as Lux, Lifebuoy, Spry, Rinso, andVim, all specially registered brand names.64

During the 1930s, JWT developed its brand concept into a prototype of the brandarchitecture analysis endorsed by brand portfolio strategists today. At the KraftCompany, JWT made repeated attempts to encourage the rm to adopt ahierarchical product naming strategy for the UK market. As the rm launchedmore products in the UK, JWT advised that there was a need for clarication in itsbranding and the introduction of individual product brand names. The KRAFT namewas to be moved from denoting a type of cheese to make the name Kraft mean ahouse, to be used as an endorsement alongside product brand names:

The strongest position a manufacturer can occupy is to have his products widely knownand purchased by a specially registered brand name with his own name as maker. Thereputation of the name Kraft in the food eld, and its connection with quality products,are assets which should be utilised to the utmost.65

The adoption of brand names facilitated this move towards more sophisticatedbranding strategies, including single-line marketing in which the product brand wascentral, and the adoption of endorsement brands alongside these individual brands.JWT made similar use of the brand name at Rowntree, encouraging the rm todevelop single-line marketing that primarily promoted the brand rather than thecompany name. Consequently, the chocolate rms product range shifted from itemssuch as ROWNTREES MOTORING CHOCOLATE and EXTRA CREAMY MILK CHOCOLATE tobrands such as AERO, KITKAT, and SMARTIES (Fitzgerald, 1989, p. 53).66 The lattertwo had originally been named ROWNTREES CHOCOLATE CRISP and CHOCOLATEBEANS, the descriptive nature of which failed to ensure registrability as non-descriptive trade marks, hindered single-line marketing, and did not secure innovatoradvantage by having a non-imitable product name.

The ip-side to innovator advantage was the problem of genericisation: a brandname becoming synonymous with a type of product or action to the extent that itbecomes an alternative noun or verb. As early as 1872, in a case for passing o, itwas judged that LIEUTENANT JAMESS HORSE BLISTER had through extensive usebecome the name of the product itself, rather than the brand.67 But, from the 1880s,the boom in concise, often single-word, invented brand names for novel productsexacerbated the risk of generic use.

In the medicines sector, even today, generic names remain an issue, withexpired-patent drugs requiring the creation of a secondary, generic name that othermanufacturers may use to market their versions of the drug.68 In the laternineteenth century, genericisation particularly aected medicinal goods that hadbeen patented under a brand name. The Herschell Committee on trade mark lawaddressed the correlation of brand-naming and genericisation in relation topatented articles in 1887: Would a fancy name given to [a patented] article,whether registered or not, at once become publici juris to the detriment of its

Business History 33

originator? wondered the representative of the Trade Mark Protection Society.69

In attempting to resolve this, the committee noted that exclusivity of use was notpermitted where a name or word was originally, or has come to be, descriptive ofthe article to which it is attached so that it does not connect that article with anyparticular manufacturer.70

Medicine trade marks at risk of genericisation cited to the 1887 HerschellCommittee included the SPIRONE inhalant, which was suciently known to identifythe word Spirone with all medicaments which are taken for the benet of the lungsby inhaling.71 But some rms were more successful in defending their rights, evenwhere their trade mark was attached to an expired patent. When the patent expiredon ANTIPYRINE in 1898, the brand-owner, Meister, Lucius and Bruning, insisted upontheir claim to exclusive use of the word despite having patented their medicineunder that name. The trade respected this claim to a certain extent, the press noted,Phenazone and other names being more used with the product not made byMessrs Meister, Lucius and Bruning.72

Genericisation was an issue that found greatest prominence in the cases ofVASELINE and TABLOID. In the case of the former, the inventor of petroleum jelly,R.A. Chesebrough, had registered his UK patent for the production process as ameans of making Vaseline. The patent had been registered in 1874 and the trademark in 1877 as an old mark. After the expiration of the patent in 1888, it was judgedin 1901 that by using the term in his patent registration Chesebrough had eectivelypermitted any petroleum jelly produced according to that process to be calledVASELINE. The mark was struck o the register of trade marks and became open foruse by competitors, although this decision was reversed on appeal the followingyear.73

For Burroughs Wellcome, the threat of generic use of their TABLOID brand camefrom multiple sources. Many pharmacists apparently failed to recognise it as a trademark, dispensing other brands in response to prescriptions for Tabloids; themedical press likewise frequently used the term as a synonym for tablet; and thegeneral press encroached on the mark in their use of the word for compactnewspapers, compressed reports, and condensed items of all kinds. The companystrade mark representative, A.E. Warden remarked that:

In the course of time the popularity of the word Tabloid in association with compresseddrugs, small medicine cases, and many things of minute proportions necessarily led tothe use of the word in other connections. Tabloid Drama, Tabloid Judicial Decisions,Tabloid News, Tabloid Edition (of a newspaper) were some of the severalappropriations of the word.74

As an afterword, the Board of Trade, which oversaw the Patent Oce, proposedamending legislation in 1918 to facilitate the easier removal of genericised marksfrom the trade marks register. Such legislation would have invested in theComptroller of Trade Marks the power to expunge any mark which has becomeby usage the generally accepted name of a product. Brand ownersprotested, however, that such legislation declared that a mark may be taken o[the register] not because of what the owner does but because of what the publicchooses to do in using the brand name as a generic term.75 Following these protests,this amendment appears to have been dropped by the Board of Trade ahead of theTrade Marks Act of 1919, although for brand owners the problem of genericisationremained.

34 J. Mercer

Conclusion

The succinct, non-descriptive, non-possessive brand name is, in historical terms, arelatively new businesses phenomenon. In the UK, both the widespread adoption ofbrand names and the codication of word-based trade mark rights emerged only inthe 1880s.

Brand names were in limited use before legislation permitted their registration aswords: tobacco rms made use of such brands for product dierentiation in the1860s; wine rms such as Gonzalez Byass were quick to register old brand namesunder the 1875 Trade Marks Registration Act; Lever Brothers adopted the famousSUNLIGHT brand in 1876; and Joseph Croseld attempted to imitate Lever bylaunching PERFECTION before the law permitted its registration as a mark. Yet, trademark registration data from 1876 indicates that brand names such as these were arecent development in business. Elsewhere, trade mark data from the US indicatesincreasing take-up of the brand name after the early 1870s a few years after theintroduction of a national scheme of registration codied rights to register words inthe US.

UK trade mark law was slower to accord property rights to words, with evidentconcern at the ownership of dictionary words, surnames, product descriptions, orgeographic names. Realising the value of word registrations, and seeing their use byrms overseas, businesses tended to press for greater intellectual property rights.Once some rights were granted, the denitions of a word mark inscribed in these lawsmoulded the particular form of the brand name in the UK. From 1883, only fancywords were allowed registration; from 1888, the denition was widened to anywords making no reference to the character of the goods; and as trade mark lawdeclared possessive/descriptive product names as non-registrable as new trademarks, there was a degree of compulsion for rms to adopt innovative branding fornew products.

In various sectors, rms saw the utility of brand-naming. Early users includedwine merchants, who, in the UK and elsewhere, invented chateaux, locations, ornobility to imply provenance or contrive authenticity. From the 1880s, new brandswere increasingly used to suggest product novelty, both genuine and spurious,particularly in elds such as medicine. In the cases of genuine innovation, thebrand name contributed a non-descriptive and non-imitable product name thathelped secure competitive advantage for rst-movers in a particular sector. Longerterm, this concise branding style facilitated the trend towards single-line marketing.In the twentieth century, advertising agencies such as J. Walter Thompsonchampioned the brand name to develop strategies which put the product brandfront and centre. Such rms developed the concept of brand hierarchies, toimplement single-line marketing but with the option to retain established proprietorbrands as endorsements.

The brand name thus provided immediate benets to rms by helpingprotect competitive advantage and creating distinctive brands. And it left along-term legacy by facilitating further developments such as brand architec-ture. But, aside from these practical consequences, the brand name is signicantfor contributing to a shift in the nature of branding. Its adoption marked thedevelopment from marks as descriptions of origin to brands as items of artice,from conveyors of information to evocative contrivances. This fundamentallychanged the function of brands and the way in which they were used, and

Business History 35

foreshadowed the investing of modern brands with intangible identities,associations, and personalities.

Acknowledgements

Research for this article was undertaken as part of the ESRC-funded research project,Reassessing the Mark: A historical view of trademarks and British competitiveness, based atQueen Mary, University of London. I would like to thank the projects principal investigators,Paul Duguid (Berkeley) and Teresa da Silva Lopes (York), for commenting on, and suggestingideas for, this article.

Notes

1. Henry S. Wellcome to Silas Burroughs (19 October 1883). Henry Wellcome Letter Book1. Wellcome Library: WF/E/01/01/01.

2. On brand intangibles, see also: Aaker, 1996; Blackett, 2003; Danesi, 2006; Elliott &Percy, 2007, section 1: the socio-cultural meaning of brands; Schroeder, 2008. Onbranding and trade marking, see: Duguid, Lopes, & Mercer, in press; Higgins, 2008.

3. Newton (2008, p. xi), in his compilation history of famous trade marks, remarks that inthe nineteenth century little science was involved in creating trademarks. Most of themwere simply the names of the company founders, although some were invented marks,such as Aquascutum coats, Camp coee, HMV gramophones, Kodak cameras, andSunlight soap, however, no further discussion of this trend is forthcoming.

4. Wilkins even notes (1994, p. 16) that she treats the terms trade mark, trade name andalso company name (when attached to a product) as synonymous.

5. On the development of the trade mark as property see also: Bently, 2008b. On the issueof trade mark infringement see: Higgins, in press.

6. Reported cases those selected for inclusion in the ocial law reports aresupplemented here by un-reported cases culled from contemporary press reports.

7. As Fitzgerald has noted, branding was of greatest relevance to consumers of non-durablegoods as these were marked by frequent, cheap, and quick purchase, none of whichcharacteristics were applicable to durable goods (Fitzgerald, 1995, p. 25). On thedevelopment of branded, advertised consumer goods see also: Church, 1999; Church,2000; Tedlow, 1996.

8. Newton (2008, p. 350) notes that, by the endof 1877Wills had registered a long list ofmarksincluding Aquidneck, Best Birds Eye Tobacco, Bishop Blaze, Early Bird, El Necociante,Fabrica de Tabacos, Firey brand, Gold Flake, Golden Grain and Star symbol.

9. Burgess v. Burgess (1853). It was held that it is a question of evidence in each casewhether there is false representation or not (Narayanan, 1997, pp. 78). In 1843 the caseof Croft v. Day, which centred on rival use of the name DAY AND MARTIN, establishedthat legitimate use of owners names could not be restrained, but the court must preventa defendant using it in such a way as to deceive and calculate the public (Narayanan,1997, pp. 67).

10. Liebigs Extract of Meat Company v. Hanbury and Another. The Grocer, 23 November1867, p. 424. In 1887 the issue of Liebig was raised before Lord Herschells committeeinvestigating intellectual property rights, where it was urged that rst users of a surname-mark should be permitted registration; Report of the Committee Appointed to Inquireinto Trade Marks and Designs: minutes of evidence [hereafter Herschell CommitteeReport] (1887), p. 54.

11. Some rms successfully applied for injunctions against other, more recent users of ageographical designation, subject to it having acquired secondary meaning as indicativeof the rst-users products (such as in Huntley and Palmers v. The Reading Biscuit Co.,1893), but this did not aect the conditions on registrability for new trade marks (seeHiggins, 2008, pp. 5455).

12. Report from the Select Committee on Trade Marks Bill and Merchandize Marks Bill:minutes of evidence (1862), p. 111. On the development of trade marks as property, see:Bently, 2008b.

36 J. Mercer

13. Report from the Select Committee on Trade Marks Bill and Merchandize Marks Bill:minutes of evidence (1862), p. 82.

14. As Bently (2008a, p. 16) notes, Over the thirty years [from the mid nineteenth century]the legal system began to treat the concept of trade mark as a term of art.

15. Trade Marks Registration Act (1875), clause 11. In Re Hopkinson was a case judged onwhether a rm was able to register a surname as an old mark and concluded that as longas a reputation had been acquired and no other similarly-named rm had also acquired areputation, the registration of a surname was acceptable; The Times, 17 March 1892,p. 13.

16. Law Report: Stephens, Ex parte (1876), L.R. 3 Ch. D. 659.17. Brand and Mason v. Mason. The Grocer, 27 January 1877, p. 97. The right to use a

surname was circumvented by the mustard company Colmans of Norwich, which endedup buying the tonic-wine manufacturer Colemans of Norwich partly to avoid continuedconfusion over their names.

18. Lea v Millar. The Grocer, 29 July 1876, pp. 118119.19. See, for instance: In Re Powells Trade Mark. The Times, 28 April 1893, p. 13, where the

judgment ordering the mark to be expunged was upheld on appeal.20. Pirie v. Goodall. The Times, 12 May 1891, p. 3. This case was over a watermark used on

writing paper. There is no indication in the proceedings of the standing committee ontrade where the proposal for registration of fancy words and brands originated from;Report of the Standing Committee on Trade, Shipping, and Manufactures on the Patentsfor Inventions Bill (1883). In the 1887 Herschell Committee Report it was acknowledged(p. xi) that Some controversy has arisen with reference to the meaning of the wordbrand . . . the term derives its origin from the practice of producing some mark bymeans of burning, but it appears now to be in use in certain trades for the purpose ofdescribing trade marks no longer produced in this way.

21. A further indication of a shift away from visual distinctiveness was the 1883 Actsdeclaration that trade marks may be registered in any colour without aecting theirsubsequent legitimacy.

22. Patents, Designs, and Trade Marks Act (1883), clause 64.23. Annual Report of the Comptroller-General of Patents, Designs and Trade Marks for

1884, p. 8. A further hint of overseas leadership in invented brand names was the rstapplication for a fancy word mark under the 1883 Act. PETREOLINE, applied for by LaCompagnie des Vaselines Francaises, was the rst non-old invented word mark advertisedin the Trade Marks Journal following commencement of the Act in January 1884.

24. It should be noted, however, that the UK refused to grant reciprocal rights in the mannerspecied in the treaty. The UK Patent Oce continued to insist that any foreign rmsapplying to register their marks in the UK must full the denition of a trade mark inUK law, thus breaching Article 6 of the Convention: every trade mark duly registered inthe country of origin shall be admitted for registration, and protected in the formoriginally registered in all the other countries of the Union; International Conventionfor the Protection of Industrial Property (1883), article VI. The UK Patent Ocesinsistence that UK law trumped international convention was eectively upheld in court,where it was judged that the 1883 UK Act did not make provision for internationalregistrations under the 1883 Paris Convention; see: Law Report: In Re Californian FigSyrup Companys Trade Mark (1889), L.R. 40 Ch. D. 620. It was not until the BrusselsConference on Industrial Property in 1900 that the UK got an amendment to thisprovision agreed by the other signatories in the meantime, it apparently disregarded itunchallenged.

25. See also: British Accession: Industrial Property Convention of March 20 1883 (17 March1884). National Archives: FO 93/33/124.

26. A decade later, The Comptroller of the UK Patent Oce was pressing for greaterinternational uniformity in the denition of a trade mark, sending out surveys to foreigntrade mark oces to gauge their denition of a mark. He noted: As it is in the interest ofall concerned that a uniform denition of a trade mark should be adopted, if this countryis prepared to slightly widen the scope of the existing denition there should be littlediculty in arriving at a common understanding; Minute by the Comptroller-General,ND, c1893. National Archives: BT 209/48.

Business History 37

27. Herschell Committee Report: minutes of evidence, p. 169.28. Herschell Committee Report: minutes of evidence, p. 169.29. Law Report: In Re Trade Mark Alpine (1885), L.R. 29 Ch. D. 877.30. See: Draft Directions of Board of Trade, Herschell Committee Report: appendix,

pp. 198200.31. On the last example see the WASHERINE case, In Re Burlands Trade Mark (1889).32. Herschell Committee Report: minutes of evidence, pp. 45. On pp. 178 and 179 of the

report it is noted that the Comptroller explained that the Patent Oce had eectivelyset its own rules on what fancy words to permit: It is true the words are not in thedictionary, but may be suggestive, or partly suggestive, and we have refused those wordsup to the present time . . . I have suspended some that I thought might possibly beaccepted.

33. Herschell Committee Report: minutes of evidence, pp. 6, 58.34. Herschell Committee Report: minutes of evidence, p. 78.35. Herschell Committee Report, p. xii.36. Herschell Committee Report, p. xii. The possessive question was discussed by the

committee, and evidence was given that: the apostrophe and s are added, andfollowing the system under which we can register Pinks jam and Crosse and Blackwellspickles, the application is then passed.

37. Patents, Designs, and Trade Marks Act (1888), clause 1038. The Times, 9 November 1896, p. 3; 30 November 1897, p. 15; 16 July 1898, p. 4.39. The Trade Marks Journal, 3 August 1898, p. 845.40. Report of the Select Committee on the Trade Marks Bill (1905), p. iv.41. Report of the Select Committee on the Trade Marks Bill: minutes of evidence (1905),

p. 9.42. Report of the Select Committee on the Trade Marks Bill: minutes of evidence (1905),

p. 9.43. F.A. Seeley to H. Reader Lack (25 Oct 1893). National Archives: BT 209/48.44. Trade Marks Act (1905), clause 9. Under the adapted to distinguish clause some rms

were able to register marks whose established use had rendered such trade mark in factdistinctive for the goods with respect to which it is proposed to be registered. CADBURYwas one such name that, on appeal to court, was allowed to be registered. The questionturned on whether the name was distinctive, in the sense of being adapted todistinguish. Although it had evidently not been adapted, it was decided that the long-term use of the word, and the absence of any other individual or rm using the name inthe confectionery trade, made the word distinctive of the rms products. The mark hadalready been registered as an old mark for cocoa and chocolate products, but thequestion arose following an attempt to register the word for a wider set of products (TheGrocer, 28 November 1914, p. 1276). Others were less successful: in 1917 the biscuit rmCrawfords applied to register its name, but this was refused and, on appeal to court, itwas judged that all the rm had done had merely been to connect the goods with his ownname (The Grocer, 17 February 1917, p. 343).

45. Trade Marks Consolidation Act (1938), clause 27.46. This data is based on the rst 300 applications advertised in the Trade Marks Journal for

each of these years; in 1876 the Trade Marks Journal began publication in May. Markswere advertised in the Journal after preliminary approval by the Comptroller of Patentsand Trade Marks, but where thereafter subject to objection by other traders andinterested parties. Consequently, not all advertised marks proceeded to nal registration.These marks have been categorised as devices or solely word-based marks. Word markshave then been divided into fancy brand names (which exclude location names or namesof the rm) and all other word marks (predominantly descriptive titles, surnames,geographical locations, or initials).

47. In the US in 1870, there were only 121 trade mark registrations, which have been used asthe sample for that year.

48. Herschell Committee Report: minutes of evidence, p. 42.49. Wilson quotes William Hesketh Lever (mis-)remembering that, following the 1875 Trade

Marks Registration Act, he was looking for names that you could register and ght for,names that did not describe the article, that were neither geographical nor descriptive;

38 J. Mercer

however, as we have seen, new word marks were not registrable under the 1875 Act andthe references to description and geography did not enter law until 1887.

50. Total Lever trade mark registrations in 1897 were 305 (from the Trade Marks JournalIndex for 1897); total UK registrations for the year were 3358.

51. Applications for registration advertised in The Trade Marks Journal, various dates.There were, apparently, reservations about the name VIM which was thought to be tooreminiscent of certain processed meat products [see footnote 60] (Wilson, 1970, p. 56).

52. Musson notes that Croselds toilet soaps were all branded specialities, its householdsoaps were divided into similarly branded and tableted products [and] a range ofolder-fashioned, non-proprietary, but tableted and scented soaps . . . including variousHoney, Skin, Castile, Windsor, and Carbolic soaps.

53. However, two of the brands cited by Croseld faced similar diculties. In 1900, the near-namesake rm Harrisons and Croseld unsuccessfully appealed against the Comp-trollers refusal to register the word NECTAR for tea, coee, and cocoa; it was held thatthe word tended to convey that it was impossible to have anything superior in the way ofa drink (The Grocer, 15 December 1900, p. 1538). And the HEALTH brand of cocoa citedby Croseld was struck o the Register of Trade Marks after the PERFECTION judgement:in 1911 it was declared that the mark must be expunged as it was merely acommendatory epithet (The Grocer, 11 May 1912, pp. 13471351).

54. The Grocer, 20 November 1909, p. 1403.55. Reckitt had in 1873 launched two products under brand names: PARIS BLUE and CROWN

BLUE, although it was only from 1890 that it appears to have developed a sustainedbrand name strategy.

56. Extract from the Pharmaceutical Journal, 12 May 1906. Burroughs Wellcome LegalPapers: File Belonging to A.E. Warden. Wellcome Library: WF/L/06/103.

57. Henry Wellcome, Some notes on the Tabloid trade mark and a suggestion (10 July 1906).Burroughs Wellcome Legal Papers: File Belonging to A.E. Warden. Wellcome Library:WF/L/06/103.

58. HOVIS is a contraction of Hominis Vis, meaning strength of man.59. J.N. Nichols faced various hurdles when trying to register the word VIM as a protective

measure: a rival rm had already registered VIM in a similar product class and objected toNicholss registration; the Registrar of Trade Marks judged VIM was not an essentialdescriptive word for Nicholss brand; and Bovril objected that there may be confusionwith its VIMBOS brand, although this was settled by an agreement that Nichols would notuse the word on any meat products. See: various correspondence (November 1913February 1914). History of Advertising Trust [hereafter HAT]: Vimto collection, box 2/1.By this stage, however, Nichols had decided to abandon the VIM TONIC name in favour ofVIMTO: our main idea is to protect ourselves, as we are now pushing the drink under thename Vimto and intend doing so; J.N. Nichols to Mewburn, Ellis, and Pryor solicitors(13 May 1914). HAT: Vimto, box 2/1.

60. In 1900, Liebig had adopted the registrable acronym LEMCO, to prevent confusionwith other brands, however its core product was still named LIEBIGS EXTRACT OFMEAT (The Grocer, 5 May 1900, advertisement). In 1896, John Rosetree attemptedto get BOVRIL removed from the trade mark register on the grounds that the wordwas inherently descriptive of beef products. It was held, however, that it was aninvented word: In Re Bovril. The Grocer, 4 April 1896, p. 516, and 13 June 1896,p. 1424.

61. The growth in Gilbeys brands may possibly be attributed to wine merchants gaininggreater control over branding in the supply chain, thereby creating a need for them tomask their position with the use of contrived authentic brands (see Duguid, 2003);Gilbey records indicate a focus towards the end of the nineteenth century on developingproprietary brands with evocative names.

62. Gilbey Board of Directors minutes (10 June 1912). Diageo Archive.63. Gilbey Board of Directors minutes (5 February 1886). Diageo Archive.64. Report: Brand Names and Their Relation to Krafts Eventual Market Position (rst

draft) (1937). HAT: J. Walter Thompson Client Files: Kraft, box 707.65. Report: Brand Names and Their Relation to Krafts Eventual Market Position (rst

draft) (1937). HAT: J. Walter Thompson Client Files: Kraft, box 707.

Business History 39

66. Rowntree had been an early adopter of the brand name, launching its ELECT cocoa while itscompetitors were still using descriptive names such as FRYS PURE CONCENTRATED COCOA.Cadbury later developed strong individual product brands such as DAIRY MILK andBOURNVILLE, although unlike Rowntree it did not embrace single-line marketing, insteadcontinuing to use its CADBURY brand more prominently (see Bradley, 2008, pp. 3536).

67. James v. James (1872) (see: Narayanan, 1997).68. The necessity for generic names for patented medicines was highlighted in early 2008,

with the case of Reckitt Benckisers alleged attempts to stall the creation of a genericname for their Gaviscon heartburn remedy. See: Company accused of cheating NHS,The Guardian, 7 March 2008; http://www.guardian.co.uk/society/2008/mar/07/health.nhs (accessed 20 July 2009).

69. Herschell Committee Report: minutes of evidence, pp. 7677.70. Discussed in: Herschell Committee Report: minutes of evidence, p. 77.71. Herschell Committee Report: minutes of evidence, p. 77.72. The Chemist and Druggist, 13 September 1913, p. 50.73. In Re Vasogen and Vaseline. The Times, 13 February 1901, p. 12. This judgement was

reversed by a majority of 21 in the Court of Appeal in March 1902.74. Memorandum: A.W. to Henry Wellcome, Some notes on the Tabloid trade mark and

a suggestion (10 July 1906). Burroughs Wellcome Legal Papers: File Belonging toA.E. Warden. Wellcome Library: WF/L/06/103.

75. Both quotes from: Notes of a Deputation from Trade Mark Owners Association to thePresident of the Board of Trade (15 March 1918). National Archives: BT 209/508.

Notes on contributor

John Mercer has recently nished working as Postdoctoral Research Assistant on a project onbrands and trade marks in historical perspective, in the School of Business and Managementat Queen Mary, University of London.

References

Aaker, D.A. (1996). Building strong brands. New York: The Free Press.Aaker, D.A. (2004). Brand portfolio strategy: Creating relevance, dierentiation, energy,

leverage, and clarity. New York: Free Press.Alford, B.W.E. (1973). W.D. & H.O. Wills and the development of the UK tobacco industry,

17861965. London: Methuen.Annand, R. (2000). Developments in registrability: The denition of a trade mark and its

relationship with the requirement for distinctiveness. In N. Dawson & A. Firth (Eds.),Trade marks retrospective (pp. 109135). London: Sweet and Maxwell.

Bently, L. (2008a). The making of modern trade mark law. In L. Bently, J. Davis, &J. Ginsburg (Eds.), Trade marks and brands: An interdisciplinary critique (pp. 341).Cambridge: Cambridge University Press.

Bently, L. (2008b). From communication to thing: Historical aspects of the conceptualisationof trademarks as property. In G.B. Dinwoodie & M.D. Janis (Eds.), Trademark law andtheory: A handbook of contemporary research (pp. 341). Cheltenham, England: EdwardElgar.

Blackett, T. (2003). What is a brand? In R. Clifton & J. Simmons (Eds.), Brands and Branding(pp. 1325). London: Prole.

Bradley, J. (2008). Cadburys purple reign: The story behind chocolates best-loved brand.Chichester, England: Wiley.

Church, R. (1999). New perspectives on the history of products, rms, marketing, andconsumers in Britain and the United States since the mid-nineteenth century. EconomicHistory Review, 52(3), 405435.

Church, R. (2000). Advertising consumer goods in nineteenth-century Britain: Reinterpreta-tions. Economic History Review, 53(4), 621645.

Church, R., & Clark, C. (2001). Product development of branded, packaged household goodsin Britain, 18701914: Colmans, Reckitts, and Lever Brothers. Enterprise and Society,2(3), 503542.

40 J. Mercer

Church, R., & Tansey, E.M. (2007). Burroughs Wellcome and Co: Knowledge, trust, prots, andthe transformation of the British pharmaceutical industry 18801940. Lancaster, England:Crucible.

Cratchley, L. (2000). The brand owners view. In N. Dawson & A. Firth (Eds.), Trade marksretrospective (pp. 318). London: Sweet and Maxwell.

Danesi, M. (2006). Brands. London: Routledge.Duguid, P. (2003). Developing the brand: The case of alcohol, 18001880. Enterprise and

Society, 4(3), 405441.Duguid, P. (2009). The French connections: The international propagation of trade marks in

the nineteenth century. Enterprise and Society, 10(1), 337.Duguid, P., da Silva Lopes, T., & Mercer, J. (in press). Reading registrations: A comparative

overview of a hundred years of trade mark registration data. In T. da Silva Lopes &P. Duguid (Eds.), Trade marks, brands, and competitiveness. London: Routledge.

The Editors of Advertising Age (1989). Procter and Gamble: The house that Ivory built.Chicago: NTC.

Elliott, R., & Percy, L. (2007). Strategic Brand Management. Oxford: Oxford University Press.Fitzgerald, R. (1989). Rowntree and market strategy. Business and Economic History, 18,

4558.Fitzgerald, R. (1995). Rowntree and the Marketing Revolution, 18621969. Cambridge:

Cambridge University Press.Higgins, D.M. (2008). The making of modern trade mark law: The UK, 18601914. A

business history perspective. In L. Bently, J. Davis, & J. Ginsburg (Eds.), Trade marksand brands: An interdisciplinary critique (pp. 4262). Cambridge: Cambridge UniversityPress.

Higgins, D.M. (in press). Trade marks and infringement in Britain, c1875c1900. In T. daSilva Lopes & P. Duguid (Eds.), Trade marks, brands, and competitiveness. London:Routledge.

Higgins, D., & Tweedale, G. (1995). Asset or liability? Trade marks and the Sheeld cutleryand tool trades. Business History, 37(3), 127.

Higgins, D., & Tweedale, G. (1996). The trade marks question and the Lancashire cottontextile industry 18701914. Textile History, 27(2), 207228.

Hopkins, J.L. (1905). The law of trademarks, tradenames, and unfair competition. Chicago:Callaghan.

Jenkins, I. (Ed.). (2006). Hovis: 120 years of goodness. London: RHM.Jones, E. (1986). Marketing the Nettlefold woodscrew by GKN, 18501939. In R.P.T.

Davenport-Hines (Ed.), Markets and bagmen: Studies in the history of marketing andBritish industrial performance, 18301939 (pp. 131145). Aldershot, England: Gower.

Keller, K.L., Aperia, T., & Georgson, M. (2008). Strategic brand management: A Europeanperspective. Harlow, England: Pearson.

Keller, K.L., & Lehmann, D.R. (2006). Brands and branding: Research ndings and futurepriorities. Marketing Science, 25(6), 740759.

LaForet, S., & Saunders, J. (1994). Managing brand portfolios: How the leaders do it. Journalof Advertising Research, 34(5), 6476.

Moore, K., & Reid, S. (2008). The birth of brand: 4000 years of branding. Business History,50(4), 419432.

Musson, A.E. (1965). Enterprise in soap and chemicals: Joseph Croseld and Sons Ltd, 18151965. Manchester, England: Manchester University Press.

Narayanan, P. (1997). Trade mark, trade name and passing o cases. London: Sweet andMaxwell.

Newton, D. (2008). Trademarked: A history of well-known brands from Aertex to Wrights CoalTar. Stroud, England: Sutton.

Nichols, S. (1994). Vimto: The story of a soft drink. Lancaster, England: Carnegie Publishing.Pacult, F.P. (2005). A double Scotch: How Chivas Regal and The Glenlivet became global icons.

Hoboken, USA: John Wiley.Reckitt, B.N. (1951). The history of Reckitt and Sons Ltd. London: A. Brown.Schroeder, J.E. (2008). Brand culture: Trade marks, marketing and consumption. In L. Bently,

J. Davis, & J. Ginsburg (Eds.), Trade marks and brands: An interdisciplinary critique (pp.161176). Cambridge: Cambridge University Press.

Business History 41

Schwarzkopf, S. (2008). Turning trade marks into brands: How advertising agencies createdbrands in the global