The Industrial Revolution facilitated a new development for brands. It should be remembered that the term Industrial Revolution refers to three major changes in economic life. These three major changes were highlighted by John Stuart Mill (1965) (originally published in 1848), Karl Marx (1904) (originally published 1867) and Arnold Toynbee (1884). These concern the agricultural revolution, the demographic revolution and, finally, the manufacturing revolution. The latter evokes, in particular, the creation of the steam engine, textile machines and blast furnaces. This period of change led to a fragmentation of tasks, an increase in working time, in the pace of work and in productivity gains. Lévy-Leboyer (1968), in an article on economic growth in the 19th Century, concludes that “the French economy was dominated by the growth of industry, which eventually led to the development of all activities […], industry accounted for a quarter of total output from 1810 to 1840, a third in the intermediate period between 1850 and 1880, and half between 1890 and 1910” (Lévy-Leboyer 1968, p. 800). As the Industrial Revolution allowed for higher production than before, industrialists were faced with the problem of the flow of manufactured goods. They had to think of ways to make it easier for them to sell consumer goods. For them, brands were one of these ways.
This intellectual reflection, in fact, had an ideological foundation that was described by one of the masters of the doctrine of free trade, in his treatise on political economy, Jean-Baptiste Say. In the first book of his treatise on economics, he explains that producers must find what in terms of trade are called “outcomes” (Say 1972, p. 87) (originally published in 1803), means of exchanging the products they have created for those they need. Jean-Baptiste Say puts producers and consumers at the center of his economic description, while considering that the consumer is, depending on the situation, the beneficiary of modernization or the one who loses, if he is subject to a monopoly or to taxes that would raise the price of the product. Indeed, in Chapter X of his treatise on political economy, concerning the different ways in which taxes are based and on which classes of taxpayers they are levied, Jean-Baptiste Say notes that “the government requires a commodity to bear a particular mark, for which it makes a charge, as in the case of the assay-mark of silver, and stamp on newspapers” (Say 1972, p. 244). This is where the essential principles of liberal theory come into play. In the operation of the overall system, the entrepreneur is at the center of the system, since, on the one hand, they receive impetus from the market and, on the other hand, they choose the optimal combination by putting the various factors together. This simply means that the entrepreneur, by distributing profits, pensions and salaries, the amount of which is equal to what they have produced, generates purchasing power.
Liberal capitalism has allowed the remarkable rise of Western societies; in the clarity of its proof, the “liberal” model has long masked imperfections in the real functioning of economic systems, such as the domination of monopolistic firms. But the pressure of facts and social necessities has forged the appearance of a mixed system, in which the action of the State has become increasingly significant. Concretely, all products are not equal; they can be differentiated. The product differentiation strategy aims to introduce a distinction between the products manufactured and sold by the firm and the products of its competitors. Branding helps to highlight this differentiation and the relative advantages, perceived as unique by consumers. The brand makes it possible to distinguish products; this distinction is important in the specification of a product and makes it possible to determine its added value. In this vein, Kapferer and Thoenig (1989) point out that the brand makes it possible to globalize all the information related to the differences between products. The brand indicates the differences between suppliers. Thus, the consumer buys the product according to the specific characteristics conveyed by the brand and pays the corresponding price, which allows the company offering the product to make an additional profit. The usefulness of the product for the consumer is thus defined. Brand value depends on the consumer’s interest in the elements of difference and specificities conveyed by the brand that lead to the purchasing act.
1.1.2. The brand’s legal character
The first text that applied to the protection of brands was so harsh that the law was hardly applied at all. Indeed, this text provided for heavy penalties against counterfeiters (Title IV of the law of 22 Germinal year XI (April 12, 1803)). The following text (the law of July 28, 1824) followed the same path and proposed criminal sanctions for any use and affixing of another person’s trade name to products. The repeal of this text was obviously proposed. The law of June 23, 1857 was the first modern text, or at least the text which is at the origin of modern brand law. It laid the foundations for the major principles attached to brands and defined the property rights at the first act of using a brand.
During the 19th Century, the law followed the logical mechanism developed by economic theory by enacting a law intended to ensure the protection of the trade name when it was affixed to products. But this was not enough, since the protection of a name could not be assimilated to the protection of a brand. This was all the more true since economic necessities and trade exchanges prompted the enactment of a brand law to supplement the trade name law.
The idea was, as Burst and Chavanne (1993, p. 456) pointed out, to ensure that “brand ownership is acquired by first use”, although analysis of this principle revealed that it was particularly unfair.
Legislators also reconsidered their position on this subject and, during the 20th Century and the development of advertising, felt the need to enact a new law. The law of December 31, 1964 provides that the rights attached to a brand are acquired exclusively by registration in the context of a brand application and no longer by use, and requires the administration to examine the application before filing. This law also introduces a possibility of revocation of the rights to a brand linked to failure to use it for five years. Following the drafting of this law, four other laws and two implementing decrees were enacted. It is understandable that the legislative arsenal became complex to ensure brand protection. The pace at which the laws were enacted was thus accelerated. Interest in brand protection grew and became a real economic issue that needed to be legally regulated.
Returning to the modalities of filing and for more details, Law No. 64-1360 of December 31, 1964 established the principle that the filing date was the starting point for brand ownership by an individual or a company, and also made it possible to solve the problem of bottlenecks due to the large number of filings. The resulting property deed thus became verifiable, indisputable and perishable. A special right was introduced by law, the principle of brand revocation, which is still valid today and which requires the use of the brand in order to retain ownership. Thus, under the terms of Article L. 711-1 of the French Intellectual Property Code, “a brand or service mark is a sign capable of being represented graphically to distinguish the goods or services of a natural or legal person.” It is thus part, alongside the trade name, sign or appellations of origin1, of the distinctive signs that make it possible to attract and retain customers.
The constant changes in the law lead us to assess an unavoidable