In this Blog, Dr Elena Cooper (Leverhulme Early Career Fellow) introduces aspects of her Leverhulme-funded project (on the role of the criminal law in the history of intellectual property) through the lens of a specific study: the nineteenth century history of the Jaeger trade mark for clothing.
I am delighted to have this opportunity to share an aspect of my ongoing Leverhulme-funded research which reappraises the role of the criminal law in the history of intellectual property. One strand of this research is the protection of trade marks in the nineteenth century through the Merchandise Marks Acts 1862 and 1887. The Merchandise Marks Act 1862 (later replaced by the 1887 Act) was the first statute regulating trade marks generally (as opposed to specific trades) and was a criminal law measure that introduced statutory offences relating to forgery of a trade mark, amongst other things. My latest paper stems from my involvement in the Brand Biographies Seminar (convened by Jose Bellido and Alain Pottage in February 2020). It looks at criminalisation and trade marks through the lens of the branding history of a nineteenth century fashion business: the Jaeger clothing company (that many will also have heard of today). The research began with a file that I found at The National Archives in London, which gave the details of the criminal prosecution of the Jaeger company in 1897 under the Merchandise Marks Act 1887, brought by the Board of Trade, a UK Government department. The content of the file was intriguing. Most nineteenth century trade mark prosecutions involve a trade mark owner taking action for the unauthorised use of a trade mark by a third party. By contrast, in the Jaeger case, the trade mark owner was ‘in the dock’ for its own branding practices and was being prosecuted by an organ of the State.
The National Archives file was just the beginning of my research, which has also taken me to the Jaeger archive (at City of Westminster Archives, London) and The British Library (which holds the nineteenth century Trade Mark Journal), as well as nineteenth century case law and sources on legislative history. What new perspectives about trade marks, fashion and crime, have I encountered through my research? As always, historical research – like a form of time-travel – involves putting to one side many assumptions we have today so as to be open to different ways of thinking. In my Jaeger research, two particular viewpoints seem radically different to how we view the world today.
First, the work of fashion historians – such as Wilson and Taylor’s Through the Looking Glass: A History of Dress from 1860 to the Present Day (1989) – introduced me to the nineteenth century idea of ‘rational dress’. At a time when women’s fashion, in particular, was highly elaborate and dangerous (e.g. large hooped skirts were a real fire hazard) societies were set up seeking to promote greater health through clothing. In particular, the British Jaeger business, set up the businessman Lewis Tomalin, sought to sell clothing that complied with the health theories of a German zoologist and physician – Professor Dr Gustav Jaeger of Royal Polytechnic School, Stuttgart – who advocated the health benefits of wearing all-wool clothing close to the skin. For Tomalin, an association with Professor Jaeger of Germany, was an important part of the British Jaeger branding. Hence, not only did indicia of Professor Jaeger’s personality feature prominently on the UK Jaeger Trade Mark (see illustration), but the legal agreements concluded between the Professor and the British Jaeger business were given prominent mention in British Jaeger advertising. This is interesting for trade mark lawyers. Today, we think of the nineteenth century as a time of weak protection for personality in the UK: for example, legal protection for false-endorsement under the law of passing off, where the claimant is not in the same trade as the defendant, is seen as a twenty-first century development (Laddie J in Irvine v Talksport 2002, cf. to Clark v Freeman 1848, where Sir James Clarke, the Physician-in-Ordinary to Queen Victoria, failed to prevent a defendant selling its pills as ‘Sir J Clarke’s Consumption Pills’). Yet, the commercial context for the Jaeger branding exercise – the need for ‘rational dress’ kudos and the fact that Jaeger clothing would only be popular if the clothing was scientifically authentic – meant that the British Jaeger business nevertheless paid royalties to Professor Jaeger for product endorsement.
Secondly, scholarship about business history – particularly Higgins’ Brands, Geographical Origin, and the Global Economy (2018) – exposes the very different political and economic dimensions to international trade in the nineteenth century, when manufacturing was largely organised on a national or regional level (rather than through the international multi-jurisdictional corporations that Kathy Bowrey recently spoke of, in the different context of the twentieth century entertainment industry, in her CREATe Public Lecture earlier this month). Jaeger was prosecuted by the Board of Trade in 1897, because it was applying a UK trade mark to goods manufactured overseas (in Germany) to the annoyance of manufacturers in Nottinghamshire and Leicestershire. At a time when expanding German manufactures were seen as posing a real threat to British economic supremacy, there was support for the view that a ‘British trade mark’ denotes that goods were ‘made in British factories and to support British industries’. This concept of a trade mark, long forgotten today, is what the Board of Trade sought to establish in prosecuting the Jaeger company in 1897.
As I have argued elsewhere – in Art and Modern Copyright: The Contested Image, CUP, 2018 (the first Chapter of which is available for free download) – history can cast new light on perspectives that have long been hidden from view and may seem surprising to us today. In the case of the Jaeger story, these are viewpoints that can only be understood through insights from other disciplines, such as fashion history and business history, in addition to an in-depth reading of trade mark law and criminal law.
Scholars of all disciplines interested in hearing more about the Jaeger story should contact Dr Cooper (email@example.com.) about a forthcoming on-line seminar on Friday 10 December 2021, at 10am, with Dr Jennifer Davis (University of Cambridge) as discussant.