ABSTRACT
Trademarks as we know them today are essentially a nineteenth-century creation. Undoubtedly, marks have antecedents stretching back millennia, but as nineteenth-century commentators (Upton 1860), legal historians (Schechter 1925; Sherman and Bently 1999), and business historians (Chandler 1990; Wilkins 1992) generally agree, it is only in the nineteenth century that a defensible property right in marks suffi cient for the task of modern marketing emerges. Most commentators also agree that the affi rmation of this property right resulted in part from legal decisions made in courts and in part from statutory law, though they differ on the signifi cance of each. The contribution of registration is less usually noted. In an argument that should gain a sympathetic hearing from institutional economists, however, the legal historians Sherman and Bently (1999: 72) have recently helped to dismiss the conventional view that registration is of ‘little conceptual interest,’ insisting rather, on ‘the important role played by registration in determining the scope of intangible property’ more generally. Indeed, it is widely assumed that the United Kingdom had no trademark law per se until it instituted a system of registration in 1876.
