How Early Did Anglo-American Trademark Law Begin - An Answer to Schechter's Conundrum
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Vol. 88 TMR
HOW EARLY DID ANGLO-AMERICAN
TRADEMARK LAW BEGIN?
AN ANSWER TO SCHECHTER'S CONUNDRUM*
By Keith M. Stolte**
It is possible that some day in some moldering mass of
unpublished records of the common law may be found a report
of a case in the reign of Elizabeth by a clothier for infringe-
ment of his trademark that will justify the authority with
which Southern v. How has been so unanimously endowed.'
INTRODUCTION
There is a new entry in the law books as the oldest
reported trademark case in Anglo-American law. It is known
as Sandforth's Case.2 Ironically, it was discovered through an
obscure reference in a seventeenth century lawsuit that
previously claimed the title of oldest trademark case.
* Copyright © 1998 Fordham Intellectual Property, Media and Entertainment Law
Journal and Keith M. Stolte. This article first appeared in 8 Fordham Intellectual
Property, Media and Entertainment Law Journal 505 (1998).
** Associate in the firm of Brinks Hofer Gilson & Lione, Chicago, Illinois, Associate
Member of the International Trademark Association. University of Chicago, B.A. 1987;
John Marshall Law School, J.D., magna cum laude, 1998. This article is dedicated to the
memory of Howard Mayer Brown, late distinguished Service Professor at the University of
Chicago, and renowned Medieval and Renaissance scholar.
1. Frank I. Schechter, The Historical Foundations of the Law Relating to Trade-Marks
123 (1925). See Southern v. Howe, Popham's Reports 143 (1618), 79 Eng Rep 1243 (KB
1907); J. Bridgeman's Reports 125 (1659), 123 Eng Rep 1248 (KB 1912); Cro Jac 468 (1659),
79 Eng Rep 400 (KB 1907); 2 Rolle's Reports 5 (1676), 81 Eng Rep 621 (KB 1908); 2 Rolle's
Reports 26 (1676), 81 Eng Rep 635 (KB 1908).
2. Sandforth's Case, Cory's Entries, BL MS. Hargrave 123, folio (fo) 168 (1584)
(providing a fairly complete portion of the complaint), reprinted in J.H. Baker and SF.C.
Milsom, Sources of English Legal History-Private Law to 1750, 615-18 (1986); HLS MS.
2071, fo 86 (providing a brief abstract of the case), reprinted in Baker and Milsom, id at
615-18; HLS MS. 5048 fo 118v. (formerly catalogued as HLS MS Acc. 704755, fo 118v.)
(providing another brief abstract of the case), reprinted in Baker and Milsom, id at 615.
Other unpublished references to the case are found in CUL MS. Ii 5. 38, fo 132; HLS MS.
2074, fo 84v; and BL MS. Lansdowne 1086, fo 74v. There is a discrepancy among the six
sources as to the name of the case. For example, in BL MS. Hargrave 123, fo 168v. the
name of the case is apparently Sandford's Case. J.H. Baker, Introduction to English History
385 fn 45 (2d ed 1979) [hereinafter referred to as English History I]. In CUL MS. Ii. 5. 38,
fo 132, the case name is Samforde, and in HLS MS. 2074, fo 84v, it is Sandforth's Case. In
view of this conflict, and intending to modernize the name of the case, Professor Baker
chose to name the case J.G. v. Samford in the 1990 edition of his book Introduction to
English History. J.H. Baker, Introduction to English History 522 fn 68 (3d ed 1990)
[hereinafter referred to as English History II]. 'b preserve the historical quality of the case,
this article uses the name designated in HLS MS. 2074, fo 84., that is, Sandforth's Case.](ViewImageLocal?handle=hein.journals/thetmr88&div=50&collection=journals&method=preview&ext=.png&size=3)
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How Early Did Anglo-American Trademark Law Begin - An Answer to Schechter's Conundrum
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