ABSTRACT
The orthodox definition of ‘the primary and proper function of a trademark’ is that given by the Supreme Court of the US in the leading case of Hanover Star Milling Co v Metcalf 240 US 403, 412 (1916): ‘to identify the origin or ownership of the goods to which it is affixed.’ The ‘origin or ownership’ so designated by a trademark must be the personal origin or ownership.[4] In order to test the adequacy of this definition, which has been used by the courts practically uniformly, with but the slightest variation of language and none of meaning,[5]
it will be necessary to consider very briefly the actual usages of trade as well as certain historical data, with which the present writer has dealt more thoroughly elsewhere.[6]
The modern trademark has two historical roots: (1) the proprietary mark, which was optionally but usually affixed to goods by the owner, either for the benefit of illiterate clerks or in order that in case of shipwreck or piracy the goods might be identified and reclaimed by the owner. This mark was essentially a merchant’s rather than a craftsman’s mark and had nothing to do with the source of production of the goods in question. (2) The regulatory production mark, which was compulsorily affixed to goods by statute, administrative order or municipal or guild regulation, so that defective work might be traced to the guilty craftsman and heavily punished, or that ‘foreign’ goods smuggled into an area over which a guild had a monopoly might be discovered and confiscated. This mark was a true mark of origin, designating as it did the actual producer of the goods.
