The functions of a trade-mark in advertising may be concisely stated as follows:
1st. As a certificate of genuineness of the product to which it is affixed. This protects the public.
2nd. As an identifying mark, owned by the manufacturer, and in the ownership of which the law protects him in order that no competitor may reap the advantage of the selling effort and advertising put forth by the owner of the trade-mark. This protects the manufacturer.
In its legal aspect, a trade-mark is therefore a device for protecting both the manufacturer and the public from fraud. In this connection, we quote the legal definition of a trade-mark as given by the Federal Court in the case of Shaw Stocking Company vs. Mack:
"Broadly defined, a trade-mark is a mark by which the wares of the owner are known in trade. Its object is twofold; first, to protect the party using it from competition with inferior articles; and second, to protect the public from imposition.... The trade-mark brands the goods as genuine, just as the signature of a letter stamps it as authentic."
The law of trade-mark usage, reinforced by a vast array of legal decisions, is a growth of the last sixty years.
When trade was restricted within narrow geographical limits by formidable conditions; when both goods and news traveled slowly; when selling effort was principally made by word of mouth, there was no genuine need in the commercial world for the legal regulation of trade-marks, or for laws designed to repress unfair trade.
In the days of our forefathers manufacturers made goods; they did not sell them. Goods sold themselves. And, consequently, the expanding circle of a manufacturer's trade rippled out with exceeding slowness. A national sale of any product was the result of perhaps several generations of slowly expanding effort—and when once established, it was generally entrenched far beyond the reach of competitors or substitutes. People lived simply, and manufactured articles were few. It is true that trade-marks existed then—as they have since the beginning of organized commerce—but they were few in number, compared with their multiplicity to-day, and their owners were adequately protected by their ordinary common law rights.
Quickly moving transportation and highly developed methods of distribution and sale have changed these conditions.
To-day the swift shuttle of commerce flies to the ends of the world. Advertising has arisen, and has become, in a generation, the most important of selling forces. People read and believe the printed word, and they buy goods manufactured a thousand miles away by some advertiser of whom they had never heard until they read of him and his wares. Society has become intricate and complicated. Thousands are striving to do what one man strove to do a hundred years ago.