The Role of Trademark Law in the History of US Visual Identity Design, c.1860–1960

By Oxford University Press on behalf of The Design History Society


Design historians still await a truly authoritative account of the development of visual identity design (aka graphic identity design or corporate identity design1) in the United States. Historians of visual identity design still disagree on basic matters of fact, such as when visual identity design was first practised in the USA, and which US designers and companies were the first to engage in it. There is, as yet, no widely accepted explanation as to why so few US businesses commissioned visual identity designs prior to World War II, nor why a small but significant number of US businesses simultaneously decided to do so in the mid-1930s (as opposed to at some earlier or later historical moment). Moreover, many historians have relied on highly dubious assertions about the character of US designers and businesses in order to explain the post-war surge of interest in visual identity design.

In this essay, I argue that US trademark law has played an under-recognized but formative role in the early history of US visual identity design. For example, design historians have seldom offered explanations for why US businesspeople did not commission visual identity designs in the 1900s, 1910s and 1920s; the few who have done, have suggested that US businesspeople’s ignorance, or their ‘conservative tastes’, were the reason for their lack of interest in them. In contrast, I argue that US trademark law during those decades strongly favoured ‘conservative’ styles and furthermore made visual identity design a risky and in some cases actively undesirable investment. Second, earlier design historians have offered changing tastes or an increasing acceptance of modernism as reasons why a small but significant minority of US businesses simultaneously commissioned the country’s first visual identity designs in the mid-1930s. I propose instead that changes in US common law pertaining to trademark licensing and franchising, coupled with anti-chain legislation, made visual identity design feasible and desirable for the first time, and indeed downright necessary for certain kinds of franchises. Third, earlier design historians have credited the efforts of individual designers with strong personal visions, the changing size and character of US corporations and, once again, changing tastes as explanations for why nearly every large regional, national and multinational US company invested in visual identity design following World War II. In contrast, I argue that the strong statutory trademark protection afforded by the Lanham Act of 1946 sparked the strong and sustained surge of interest of businesses in visual identity design. And ultimately, I suggest that attending to the laws that condition the actions of all businesses and designers can at times yield more satisfying historical explanations than traditional archival research on individual businesses or designers.

How US common law shaped nineteenth-century trademark design

Today, legal scholars routinely lump trademark law together with copyright, patent, and design patent law as a form of so-called intellectual property law.2 But trademarks are far more ancient than patents and copyrights, and spring from entirely different motives. Patents and copyrights are intended to provide incentives to innovation by granting inventors and creators a limited-term, exclusive right to produce their novel inventions or original creative works. Trademarks provide no incentives to create new goods, nor exclusive rights to produce goods. Because their original purpose was simply to identify the source of goods, they can endure under both common and statutory law for as long as a producer remains in operation.

Producers, consumers, and governing bodies all have reasons to be interested in trademarks. Producers have, for millennia, voluntarily moulded, stamped, incised and painted their names or makers’ marks on their products in order to solicit repeat custom and to deter copyists. Consumers use trademarks to identify goods by makers whose products they have liked in the past. Civil and religious authorities have often mandated printers’ marks, just as guilds often required trademarks and hallmarks, in order to regulate the number of authorized producers and to punish those whose output they deemed sacrilegious, unethical or incompetent.

The authors of the Constitution did not explicitly authorize Congress to write federal trademark legislation, presumably because there were no precedents and no recognized need for it. Until 1870, the US states individually adjudicated trademark and unfair competition disputes under common law. Under state common law, the person or business who could demonstrate the earliest continuous use of a trademark in a given field of commerce in a given state received exclusive rights to the mark in that state. But since the purpose of trademarks is to identify the source of goods, another bedrock principle of nineteenth-century US common law was that people could not be precluded from doing business under their own names. And indeed, the vast majority of early and mid-nineteenth-century American businesses used their founders’ names as, or as part of, their trademarks (e.g., Procter & Gamble; F.W. Woolworth’s; Montgomery Ward, J.C. Penney, Levi-Strauss, Smith Brothers).

Read Moer >>