Dated Data: Presentism and California Trademarks

Data-driven research has an inherent and understandable tendency to lean towards contemporary data, which is always more likely to be "big." Where possible, however, it can be useful to balance the contemporary with historical data, as these can help overcome the inherent "survivorship bias" of contemporary data and the different sorts of teleological and presentist explanations that follow from this bias. This talk will offer an overview of early trademark registration data and suggest how these might modify our understanding of the development and theory of this branch of IP. It will try to look forward from the early registrations in the United States, rather than back with hindsight from the present. And it will draw on state registrations, rarely available in the big data sets of the U.S. Patent and Trademark office. In particular, it will look at California data. Generally overlooked, even by early historians of IP, California produced not only the first state trademark registration law, but anticipating federal law by seven years, the first law in the United States. As it also antedated British law by a dozen years, California's is in fact the first trademark registration law in common law jurisdictions and this year its 150th anniversary. The theory and general histories of trademarks, however, comforted by their own data, assume that the law and subsequent history developed in the industrial states.