Abstract:
Trade marks were recognised as property by the English Courts of Chancery in the 19th century. The advent of registration legislation in 1875 furthered the notion that registered trade marks were a species of property. However, it was not until the Trade Marks Act 1994 (1994 Act) was enacted that legislation explicitly declared that “a registered trade mark is personal property”.
Adopting a legal historical approach, this thesis examines what it originally meant when courts declared that a trade mark was property, and how and why the conceptualisation of trade marks as property has changed over time. It is argued that the original conceptualisation of trade mark as property meant a trader had authority over the activity of using a particular sign as an indication of origin for particular goods. As a result, property rights in a trade mark were narrowly construed and restricted in scope. A trade mark was considered to be a species of “qualified property”, sharing some broad similarities with property rights in wild animals and water.
Registration legislation and the process of recording a representation of an abstract sign on a Register introduced a different object-based conceptualisation of trade marks as property. However, the potential for the law to conceptualise registered trade marks as “things” was diminished by legislators and the English courts, who fettered the property rights in trade marks, and continued to give emphasis to an activity-based conceptualisation.
The rise of the brand concept in the 1950s and 1960s, in a context of changes to business practices, marketing methods and theoretical thinking about trade marks, was primarily responsible for a shift towards a more object-based conceptualisation of trade marks as property. The 1994 Act reflects such a change and has removed many of the previous legislative and judicial qualifications to property in registered trade marks. As a result, the 1994 Act now maps United Kingdom trade mark law more closely (but not completely) to the notion that property rights in registered trade marks are property rights in and to things.