Ancient Roots:  The Origin and Early Development of Intellectual Property

The protection of an individual’s intellectual property by law is not a modern-day development.  Rather, it stems from hundreds of years of varying levels of protection or acknowledgement.

One of the first known references to intellectual property protection dates from 500 B.C.E., when chefs in the Greek colony of Sybaris were granted year-long monopolies for creating particular culinary delights (now considered a form of copyright protection). In one of the first references to intellectual property in ancient times, Vitruvius (257–180 B.C.E.) is said to have revealed intellectual property theft during a literary contest in Alexandria. While serving as judge in the contest, Vitruvius exposed the false poets who were then tried, convicted, and disgraced for stealing the words and phrases of others.

Patents (from the Latin verb pateo, to lie open, exposed, accessible)

In England, grants in the form of letters patent were issued by the sovereign to inventors who petitioned and were approved: a grant of 1331 to John Kempe and his Company is the earliest authenticated instance of a royal grant made with the avowed purpose of instructing the English in a new industry. These letters patent provided the recipient with a monopoly to produce particular goods or provide particular services. Another early example of such letters patent was a grant by Henry VI in 1449 to John of Utynam, a Flemish man, for a twenty-year monopoly for his invention.

The first Italian patent was awarded by the Republic of Florence in 1421. The Florentine architect Filippo Brunelleschi received a three-year patent for a barge with hoisting gear, that carried marble along the Arno River in 1421.

Trademarks

In Ancient Egypt, Greece and Rome, potters often marked their pottery with distinctive signs (referred to as ‘potter’s marks’), showing who had made it, and undoubtedly, signalling the craftsmanship associated with that particular item and its maker (examples). Although these marks did not serve the same purpose as modern trademarks do, they were akin to their modern counterparts. Seemingly these marks were never enforced, but one can imagine they potentially were a deciding factor for those who would purchase the items.

In trademark treatises it is usually reported that blacksmiths who made swords in the Roman Empire are thought of as being the first users of trademarks.  Other notable trademarks that have been used for a long time include Löwenbräu, which claims use of its lion mark since 1383. The first trademark legislation was passed by the Parliament of England under the reign of King Henry III in 1266, which required all bakers to use a distinctive mark for the bread they sold.

The first modern trademark laws emerged in the late 19th century. In France the first comprehensive trademark system in the world was passed into law in 1857 with the “Manufacture and Goods Mark Act”. In Britain, the Merchandise Marks Act 1862 made it a criminal offence to imitate another’s trade mark ‘with intent to defraud or to enable another to defraud’.

In the United States, Congress first attempted to establish a federal trademark regime in 1870. This statute purported to be an exercise of Congress’ Copyright Clause powers. However, the Supreme Court struck down the 1870 statute in the Trade-Mark Cases later on in the decade. In 1881, Congress passed a new trademark act, this time pursuant to its Commerce Clause powers. Congress revised the Trademark Act in 1905. The Lanham Act of 1946 updated the law and has served, with several amendments, as the primary federal law on trademarks.