A Case of Prejudice? The Uncertain Development of Collective and Certification Marks.

The introduction of collective and certification marks to U.S. law in 1946 by the Lanham Act has generally been regarded as an innovative and forward-looking step. Yet these marks had been widely used by individual states since the previous century, and international conventions had long been pushing the federal government to enact measures to protect them. Indeed, it may be stranger that the U.S. trademark law of 1905 did not include protection for such marks than that, forty years later, the Lanham Act did. In exploring why the law of 1905 failed to respond to widespread innovation, and why the Lanham Act was celebrated for fulfilling such a long-overdue obligation, this article raises questions about conventionally linear accounts of the development of trademark law and practice.