more significant than those of any other court, has come clear recognition of the fact that "the legal protection of trade-names does not engender competition; on the contrary, it creates lawful monopolies, immunities from competition." The courts have not embraced Professor Chamberlin's suggestion that trade-mark infringement should be encouraged as a means of purifying competition; monopolies can, of course, serve a useful purpose, and merely to recognize the monopolistic function of trade-marks is not to condemn them. Notice has been served, however, that the purpose which justifies the exception from the normal rule of competition measures its limits: "The protection of the interest of consumers is an ever-present factor in considering the allowable extent of monopolies in trade-names ...

"8

More or less contemporaneously with the emergence of this restrictive attitude, a movement has been under way to strengthen and enlarge the scope of trade-mark protection. Its crowning achievement is the Lanham Trade-Mark Act of 1946, the avowed purpose of which is to fortify the position of the trade-mark owner. The Act is comprehensive and far-reaching; it introduces important new concepts into trade-mark law; and, while the implications of many of its provisions are still unclear, it is evident, as Judge Learned Hand has recently said, that the Act "did indeed put federal trade-mark law upon a new footing." Moreover, certain controversial provisions of the Act focus attention on the possibility that trade-marks may lend themselves, after the fashion of patents and copyrights in the past, to patterns of abuse which are particularly offensive to the policy of the antitrust laws. It may fairly be suggested, therefore, that trade-marks are in a period of transition. Perhaps, with the enlarged protection afforded by the Lanham Act, they will grow in strength and power as instruments of market control. Perhaps, on the other hand, the influence of common-law tradition, economic criticism, and the protective provisions of the Act will operate to restrain any such growth, or even to induce some retreat from extremes attained independently of this legislation. Judge Charles E. Clark has already detected what appears to him to be a tendency in his court to "cut this Act . . . down to a size consistent with the court's conceptions of public policy."10 There is even a possibility that the economic significance of the trade-mark may be gradually diluted from another quarter if we should become convinced, with Professor Auerbach, that the real promise of protection for the consumer interest lies not in a restrictive attitude toward the protection of trade symbols but in the development and acceptance of informative labeling and grade labeling. Some of the problems are examined in this symposium.

BRAINERD CURRIE.

Eastern Wine Corp. v. Winslow-Warren, Ltd., 137 F. 2d 955, 957 (C. C. A. 2d 1943), Judge Frank speaking for the court.

8

7 CHAMBERLIN, op. cit. supra note 3, at 204.

Eastern Wine Corp. v. Winslow-Warren, supra note 6, at 959. See also the concurring opinion of Frank, J., in Standard Brands v. Smidler, 151 F. 2d 34, 37 (C. C. A. 2d 1945).

'S. C. Johnson & Son v. Johnson, 81 U. S. P. Q. 509, 511 (C. C. A. 2d 1949).

THE LANHAM ACT AND THE SOCIAL FUNCTION OF TRADE-MARKS

EDWARD S. ROGERS*

Lawyers are so in the habit of thinking of trade-marks in their legal aspects that they sometimes lose sight of the social values that are implicit in them. I am going to take the liberty of recalling a little of the philosophy underlying trademarks as a social institution, and the need of protecting them against misuse.

Trade-marks are one of the oldest of human institutions. Wherever are found the remains of early civilizations, in Egypt, Crete, Greece, or Rome, things with trade-marks on them turn up. Indeed, an industrious antiquarian was able to compile a directory of the lamp makers of ancient Athens from the marks on the broken clay lamps that were found in the city refuse heaps.

The Egyptian law required the owner of every brickyard to place his name on the bricks he sold, and also the name of the slave who actually made the bricks, so that responsibility for defective bricks could be fixed. This practice was a characteristic of the guild system of the Middle Ages. All manufactures—“misteries,” as they were called-were confined to trade guilds. No one could engage in trade unless he was a member of such a trade union. The guild statutes required each article made to bear the guild mark, accompanied by the mark of the individual artisan. This was for two purposes. The guild mark was required to show that the article was not contraband-that is to say, non-union-and the requirement that the individual artisan's mark be stamped on the goods was to fix responsibility for bad work, so that the slovenly worker could be identified and disciplined. For example, helmet makers petitioned in 1347 against the foreigners who, not knowing their trade, intermeddled in the making of helmetry, "by reason whereof many great men and others of the realm have been slain through their default." The law of the armorers compelled each member of the guild to mark his product to fix responsibility within the guild for faulty work. And the reason was clear enough. A fighting man staked his life on the weapons he bore and the armor he wore, and, if anything went wrong, his widow or next of kin wanted to find the varlet who was responsible.

* LL.B. 1895, University of Michigan. Member of Illinois and New York bars. Lecturer on Law of Trade-Marks and Unfair Competition, University of Michigan. Chairman of Board, Sterling Drug Inc., New York. American delegate to Inter-American Conference to Negotiate Convention of Trade-Marks and Commercial Names, 1929.

With deep regret, the editors of LAW AND CONTEMPORARY PROBLEMS record the fact that Mr. Rogers, loved and respected dean of the trade-mark bar, died shortly before the publication of this symposium. We are honored in the opportunity to bring to his profession this paper, written for this symposium in the closing months of his life-the product of his rich experience and his intimate leadership of the long struggle to revise the statutory law of trade-marks. [Ed.]

These were in the nature of public regulations. Some artisans being better than others, by a gradual process of evolution certain marks came to connote good workmanship and, hence, to symbolize good will, like a modern trade-mark. With the break-up of the guild system, marks of this kind survived and with them the modern idea of trade-marks symbolizing good will or good reputation and having an asset value.

WHAT GOOD WILL IS

A. The Identification of Persons

Perhaps a digression into the seemingly irrelevant may help us to an understanding of what good will is, by considering the term as applied to people. Individual good will is nothing but the friendliness that others feel toward a person. Its existence depends on the ability to distinguish one person from another. Try to imagine for a minute what the world would be like if no one could be identified, if everybody looked so much like everybody else that people could not distinguish anybody from everybody. Fancy the state of morals if it were impossible for any individual, by face, figure, or dress, to differentiate himself from others exactly like him. No one could be held responsible for any of his acts. Crime could not be punished because criminals could not be distinguished from honest men. No one could get any credit for good behavior or discredit for bad. Gresham's law would prevail, and everybody would soon be on the level of the worst. I do not think that I would like to live in a world where everyone looked so exactly like everybody else that people could not be told apart-a world where everyone looked, walked, and talked alike, and had no names.

B. How Surnames Happened

Many centuries ago, surnames were adopted because common names had become too common. They were no longer an identification of a particular person. The common man had only one name. This was the name he was christened withwhat we call his baptismal or Christian name. The result was that there were a lot of Johns, Peters, Thomases, Richards, and Josephs among the men. Most of the women were Marys, Anns, and Janes.

Imagine living in such a community. When you spoke of John, you had to distinguish the John you meant from all the other Johns by some added name. These were called surnames. "Sur" was used in the sense in which we use it now when we speak of a surcharge or overcharge, or of a surtax, an added tax. A surname is a name over or above a man's baptismal name. These surnames were really nicknames. The meaning of the words "nickname" and "surname" is the same. Nick is from the Middle English eke-also. This also-name, or surname, became an ekename, and this was telescoped into nekename, which became nick

name.

Surnames or nicknames were usually descriptive of some characteristic of the person to whom they were applied. Some were occupational. John the smith was John Smith, John the carpenter was John Carpenter. John, the man who made

bows, was John Bowyer; if he used a bow he was John Bowman or John Archer; if he made arrowheads he was John Arrowsmith; if he put feathers on arrows he was John Fletcher; or he was John Cooper, John Shoemaker, John Waterman, John Tinker, or John Taylor, depending on his occupation. If he could read or write he was John Clark. John's identification might be some physical characteristic, such as Black, Brown, White or Red (Reed); or, if he had light hair, he might be called Fairfax or Blount (blond); or he might be John Short or Long, John High or Low, John Longfellow or John Little, or Pettyjohn. If he was a big man, he would be John Stout, or if he was thin, he might be John Rathbone, i.e., Rattlebone. If he was bald, he was John Ballard. Where John lived might be indicated by the name applied to him. John Street, John Lane and John Alley were examples of this. John who lived by the well was John Wells or John Atwell or Atwater. If he lived on the outskirts of the town, he was called John Townsend to distinguish him from the John who lived in the town, who might be called John Town or perhaps Middleton. John Ford, John Hill, and John Dale are sufficiently obvious.

Language made a difference. Henry's son might be Harrison or Fitz (fils) Henry or McHenry. If he was a foreigner, this fact was indicated by a surname-French, Fleming, or Cornwallis (from Cornwall). Portugal became Portingal and then Pattengill. John might be identified as the son of his father-John Johnson, or, if the father was called Jack, the son would be John Jackson—or Jameson, or Richardson, Rixon, Dixon, or Thomson, as the case might be. Williamson was sometimes shortened to Williams or Wilson. Little Will became Wilkins and his son Wilkinson. Walter was usually shortened to Wat, from which come Watson and Watkins. Brothers did not usually have the same surnames. One might be John Wilson and another Tom Williamson, and their sons might be Williams or Wilkins. Unless a person was very important, it is impossible to trace a genealogy by name alone, and one is justified in raising an incredulous eyebrow at assertions of ancient lineage based on such a premise.

But what I am getting at is that it was socially necessary, almost as soon as community life began, to identify individuals and distinguish them from each other. Identification insured responsibility for conduct. Without identification, there could be no responsibility; the law could not be executed; trading was not possible.

C. The Need for Indicating the Origin of Goods

The social need of identifying people is the same as the need of identifying the things they buy. If we suppose that no merchandise could be distinguished from any other that it were forbidden to mark any goods or put any name, label, or other identification on them-a consumer would fare badly in such a world. A producer would too. There could be no pride of workmanship, no credit for good quality, no responsibility for bad. There would be competition, to be sure, but it would be competition to see who could make the worst goods, not the best; and he would win whose product was the cheapest, poorest, and most dishonest. It could

not be otherwise. If there were no way to tell the good from the bad, why bother to sell anything but the bad-and the worse, the better? The present-day competitive desire to do better would simply be reversed, and everyone would devote his merchandising and manufacturing energies to the promotion of the worst possible type of goods. Minimum government standards might be set up, but there would be no incentive to better them.

The ability to distinguish between people and the use of distinguishing trademarks and other identifying means on goods prevent this sort of barbarism. Trademarks make identification possible and enable people to buy with the assurance that they are getting the merchandise which by faith or experience they believe to be good, and by the same means to avoid what they dislike or know nothing of. Thus, both good will and ill will, or indifference, can be made effective.

D. What Good Will Is

We are apt to think that a trade-mark is one thing, and is more or less a legal abstraction, and that good will is something else equally abstract. Trade-marks, names and brands are merely visible good will, and good will is good reputation as ill will is bad reputation. There have been innumerable definitions of good will. It is hard to improve on Mr. Justice Holmes' statement that good will is the inclination to go back to where you have been well treated. As applied to goods, good will is the tendency to buy again an article which in the past has given satisfaction. But it depends on the ability to discriminate and identify.

Good will is trade expectancy. It is what makes tomorrow's business more than an accident.

E. Jefferson's Views about Trade-Marks-"They Contribute to Fidelity" In 1791 there was referred to Thomas Jefferson, then Secretary of State, a petition of Samuel Breck and others, sail-makers of Boston. They prayed "that they may have the exclusive privilege of using particular marks for designating the sail cloth of their manufactory." Mr. Jefferson reported "that it would, in his opinion, contribute to fidelity in the execution of manufacturers, to secure to every manufactory, an exclusive right to some mark on its wares, proper to itself."

Trade-marks symbolize reputation, good or bad, and the trade-mark is valuable in exact proportion to the goodness or badness of the reputation which it symbolizes. In this way, as Mr. Jefferson said, trade-marks contribute to fidelity. Thus, I suggest that the encouragement of signs of identity, whatever form they may take, stimulates competition by making possible free choice between competing merchants. F. Trade-Marks Are the Opposite of Monopoly

Identification of businesses and goods is the essence of free competition and the opposite of monopoly. There is no point in indicating the maker of goods if there is only one. You buy from him or you don't buy, no matter how bad the service may be. There is nowhere else to go. You must go there or go without. It is only 1 3 WRITINGS OF THOMAS JEFFERSON 157 (A. E. Bergh ed. 1907).