Ancient Egyptian Roots of Trademarks

Introduction

Trademarks serve important functions in marketplace competition. Words, names, and symbols used as trademarks have the potential to benefit both sellers and buyers. Once buyers become familiar with a producer’s trademark, they are able to use that familiarity to reduce search costs. ¹ In a parallel fashion, sellers also benefit because they can sell more products more quickly once buyers who have liked their products in the past learn to rely on trademarks as a shorthand method of identifying those products. ² And these phenomena produce positive consequences because “the benefits of trademarks in reducing consumer search costs require that the producer of a trademarked good maintain a consistent quality over time and across consumers. Hence trademark protection encourages expenditures on quality.” ³ As Landes and Posner concluded thirty years ago, “trademark law…can best be explained on the hypothesis that the law is trying to promote economic efficiency.” ⁴

Many who have written about the history of trademarks have pointed to the branding of cattle depicted on ancient Egyptian wall paintings. ⁵ But this type of casual reference in the literature has the potential to be misleading. Certainly cattle brands could function as source-identifiers for purposes of sale, but it is far more likely that the branding of cattle in ancient Egypt functioned as an indicium of ownership rather than as a marketplace identifier. And if cattle brands did not actually function as trademarks, one might well ask whether there are other ancient Egyptian examples of trademarks. That is the question that this article addresses. The answer appears to be a qualified “possibly.”

Although archaeology has provided many examples of names and symbols that ancient Egyptians applied to a variety of objects, there appear to be precious few that we might be willing to characterize as true trademarks in the modern sense of the word. The founding father of Egyptian archaeology, Sir Flinders Petrie, posits that trademarks were present in ancient Egypt under Roman rule (i.e., after the battle of Actium in 31 BC ⁶ ). Describing blown glass in Roman Egypt and then later, Petrie writes, “Ornamental stamps were pressed on soft lumps put on the sides of vases. Such stamps became used for official marks, and early in Arab times they registered the substance for which the glass measure was intended, also the amount of the capacity, and the maker’s name in many cases.” ⁷

Scholars who have written about pottery marks from other ancient civilizations have acknowledged similar difficulties regarding the precise purposes of various marks. For example, in his book, Trademarks on Greek Vases, A.W. Johnson acknowledges, “The exact significance of such marks is hard to establish; indeed there may have been more than one purpose in inscribing them.” ⁸ Johnson also notes that, although many marks “have commercial significance,” it is clear that the majority of marks that he includes in his study indicate ownership or provide information about the capacity or contents of the vases rather than functioning as true trademarks. ⁹ And he surmises that, “Most no doubt indicate ownership.” ¹⁰ In her article, Bearing Marks of Control? Reassessing Pot Marks in Late Bronze Age Anatolia, Claudia Glatz offers a subtle suggestion regarding how we might discriminate between commercial versus ownership marks.

There is a fundamental difference between pre- and post-firing marks. Marks applied prior to firing are perforce closely associated with the production environment, and the question is to what extent they convey information beyond the immediate production context. Marks added after firing relate to later stages in the life of a pot, possibly denoting ownership or the destination of traded items. ¹¹

This article examines such names and symbols that appear on a variety of ancient objects and attempts to draw conclusions about their nature. More specifically, this article offers suggestions about the purposes of such marks and considers how the nature of commerce in ancient Egypt may have influenced the development—or lack thereof—of trademarks there. And although there is a decided paucity of what we today might consider true trademarks, we can be certain that both the legal principles and the well-developed use of symbolic communication of the ancient Egyptians planted the seeds for the later growth of modern trademarks and trademark law.

One problem with any study that involves ancient Egypt is an embarrassment of riches problem. The sheer number of years that come within the scope of Egyptian antiquity is staggering. The Dynastic Period that we often consider—including the Old, Middle, and New Kingdoms, plus the so-called Intermediate Periods—spans approximately three thousand years. ¹³ This article does not attempt to present a chronology of trademarks in ancient Egypt. Instead this study merely considers evidence of examples of labeling of goods and services during those three millennia that historians consider the Predynastic and Dynastic Periods in ancient Egypt. ¹⁴

Part I of this article summarizes general observations regarding the history of trademarks. Part II continues to establish the foundations for a discussion about Egyptian trademarks by briefly remarking on the overall picture of commerce and trade in ancient Egypt. Part III, focusing primarily on depictions of military insignia on early pottery, discuses the ancient Egyptian use of symbolic expression and its relationship to some of the most important cognitive principles that animate trademark law. Part IV discusses relevant principles of ancient Egyptian property law and marks that may represent true trademarks. This part also speculates about how the nature of the governmental and economic structures in Egyptian antiquity may have affected the marketplace in such a way that trademarks were not common. Part V briefly considers the prospect of how the Egyptians might have used product and/or container designs in ways similar to modern trade dress. Part VI then examines numerous types of marks that appear on ancient objects, which provided multiple kinds of useful information—but information that cannot be classified as trademarks. The conclusion summarizes the salient observations made and issues addressed in the body.

I. General Observations Regarding the History of Trademarks

People who make goods and people who provide services have been marking their goods or advertising their services with their names or other symbols throughout much of human history. ¹⁵ One scholar investigating ancient pottery marks notes, “The application of simple marks on pottery either during or after the production process is a widespread phenomenon in both the archaeological and ethnographic records of a range of different societies.” ¹⁶ By stamping, etching, burning, painting, or otherwise marking their goods or advertising, sellers of goods and services have communicated to potential consumers who is responsible for making the goods or providing the services. Economists and others have pointed out that this type of labeling of goods and services is something of a double-edged sword. ¹⁷ If consumers like the qualities of a producer’s goods or services, such labeling provides consumers a convenient, shorthand way to shop more efficiently, because they can rely on the label to select the goods or services whose qualities they have liked in the past. But of course the converse is also true. If consumers dislike the qualities of a producer’s goods or services, such labeling provides consumers a convenient, shorthand way to shop more efficiently, because they can rely on the label to avoid the goods or services whose qualities they have disliked in the past.

In addition to labeling of this sort—labeling that potentially communicates to consumers information about the maker of goods or provider of services (and therefore ordinarily communicating information about the quality of the goods or services)—trademark historians have described some labeling as serving different functions. For example, labeling might simply indicate ownership of goods. ¹⁸ Branding cattle, ¹⁹ marking cut timber, ²⁰ and notching the bills of waterfowl ²¹ can provide a way for owners to claim their property after the cattle have spent the day grazing with other cattle in a common, after the timber has floated miles downstream, comingled with timber belonging to others, or after the fowl have flown and swum freely with other birds (whether wild or owned by others). In addition to simple ownership, trademark historians have categorized other labeling as serving a number of additional, distinct functions. Some labeling allows a purchaser to identify the maker of goods in situations where the goods prove defective or cause injury. ²² Labeling of this sort permits society to hold makers responsible when goods fail to perform or cause damage to individuals or property. Other labels indicate that an official or inspector has examined and/or tested the goods and has determined that the goods meet specific standards or criteria, such as having certain percentages of materials (e.g., gold or other precious metals). ²³ Furthermore, there are instances where marks on goods serve a variety of other purposes, such as indications of contents, weight, capacity, volume, price, ²⁴ and even the name of the object itself. ²⁵

II. Ancient Egyptian Commerce and Trade in General

Many who have written about trademark history have observed that, generally speaking, true trademarks were not really necessary in situations long ago where buyers and sellers met face to face. ²⁶ In such arm’s-length transactions, buyers typically relied on their practical, firsthand observations and/or knowledge of a maker’s or seller’s identity and reputation. ²⁷ Rather, as a rule, it is only when goods are transported a significant distance that a seller’s or maker’s label has the opportunity to serve a shorthand method of communicating to consumers the source of the products in question. ²⁸

Even in the Neolithic period Egyptians began developing extensive trade routes to far-flung regions for both imports and exports. ²⁹ As a general rule, foreign trade expanded at the close of the Predynastic and Early Dynastic periods ³⁰ and then gradually continued to rise during the Old, ³¹ Middle, ³² and New Kingdoms, ³³ and beyond. ³⁴ To be sure, there were interruptions, especially during times of economic and political instability. But the pattern generally was one of expansion rather than contraction. ³⁵ The Nile provided an important thoroughfare for shipping goods within Egypt proper. ³⁶ In fact, because the Nile made the transportation of goods so easy, the Egyptians did not consider it important to develop paved roads on an appreciable scale. ³⁷ When they did transport goods overland, donkeys were the primary means. ³⁸

They exported a variety of foodstuffs. Among the items they exported were several grains (e.g., barley, emmer, wheat), wine, and a number of different oils. Discussing Old Kingdom trading expeditions to Nubia, Sir Alan Gardiner writes, “The Egyptians brought with them for purposes of barter ‘oil, honey, clothing, faience, and all manner of things.’” ³⁹ Containers for liquids such as wine and oil, in particular, are prime candidates for objects that might bear marks that could be characterized as trademarks. ⁴⁰ And in fact, “pot marks are particularly prevalent in Predynastic and Early Dynastic periods, but they are known also from Middle and New Kingdom contexts.” ⁴¹ As for imports, Egyptians relied on foreign sources for items such as timber, ⁴² ivory, ⁴³ copper, ⁴⁴ myrrh, ⁴⁵ and frankincense. ⁴⁶

Craft industries were diverse. ⁴⁷ Thus, it is reasonable to suggest that there was ample opportunity for the ancient Egyptians to sell a variety of goods through extensive commercial routes. ⁴⁸ According to Ruffle, “There were no great manufacturing companies – most craftsmen seem to have practised, not privately or in guilds, but as employees of the rich nobility or in the great temple workshops.” ⁴⁹ And by the New Kingdom, an appreciable number of foreign merchants had immigrated. ⁵⁰ Thus, given the relative scarcity of large-scale, private industry, it seems unsurprising that we hear of neither regulations nor laws designed to curb either monopolies or combinations that otherwise restrained trade. The Egyptians did not enact anything resembling the Sherman Antitrust Act.

III. Seeds of Trademarks: Symbols Used as Indicators of Affiliation and/or Association

Some of the earliest evidence regarding civilization in Egypt is in the form of Neolithic pottery. ⁵¹ Lucas and Harris explain,

Pottery making is one of the oldest of the arts and in Egypt dates back to Neolithic times. At first pots were of coarse material, crude workmanship, devoid of finish and badly baked, but by the Badarian and the succeeding predynastic periods the Egyptian potter was producing wares that for beauty of form and finish were extraordinarily good. ⁵²

But in addition to these decorative representations found on Neolithic pots, the archaeological record contains a number of objects—primarily pottery—that depict boats with military standards or insignia. ⁵⁷ And some of the boats display “standards later associated with some of the gods.” ⁵⁸ These military standards indicated the geographic source and/or affiliation of specific groups of soldiers. ⁵⁹ We find these military “trademarks” employed on both land and sea. ⁶⁰ In important ways, such standards serve functions similar to trademarks, because they are symbols used to represent an association between certain groups and specific geographic connections or origins. ⁶¹ “There is but little doubt that they were the equivalent of our own national flags, and that they were intended to signify possession of the ships by this or that local community.” ⁶²

Thus very early—at least as early as the Predynastic period (ca. 3000 BC)—the Egyptians recognized the utility of using symbols as shorthand methods of communicating affiliation and/or source. This type of symbolism is especially relevant to trademarks because it operates on the same principles of cognitive association as trademarks. When observers mentally associate symbols—whether language tokens, graphics, or otherwise—as representing or identifying an affiliation or a source, this psychological connecting of the dots enables observers to perceive the symbols and immediately call to mind another thing that the symbols in question represent. The pictorial representations of military insignia on early pottery illustrate the ancient Egyptians’ appreciation of this psychological phenomenon. ⁶³

In addition to military insignia, the Egyptians used other symbols to indicate affiliation in a manner similar to modern trademarks or collective marks. For example, as early as Dynasty I, the Narmer Palette represents the king wearing both the red crown of Lower Egypt (i.e., the north) and the white crown of Upper Egypt (i.e., the south). ⁶⁴ Clearly this use of symbolism is different from trademarks per se, but the use of this kind of symbolism to indicate source and/or affiliation is still, nevertheless, significant. It is significant because, as was explained, it involves the use of the same type of cognitive association on which trademarks rely for effect.

Similarly, artists adopted numerous other conventions that were symbolic. For example, “The king and some of the senior officials are sometimes shown with various staffs or sceptres which they carried as symbols of authority. *** Two distinctive attributes of kingship and of Osiris as king of the Afterworld are the crook and flail.” ⁶⁵ Even as early as Dynasty I, “the bull’s tail” which appeared on a mace-head was considered “a common attribute of royalty.” ⁶⁶ And much later, during the reign of Akhenaten in Dynasty XVIII, who is famous for bringing about a religious revolution, the pharaoh’s artists employed a distinct iconography to communicate affiliation with the new supreme deity, the Aten. Sir Alan Gardiner, noting in particular the symbols that Akhenaten employed during his reign, observes that he used “the [hieroglyphic] symbols for ‘life’ and for ‘dominion’ or ‘power’, and the kingly nature of the visible celestial body was indicated by the uraeus or cobra that hung from the gleaming circle even as it had always adorned the brow of the Pharaoh.” ⁶⁷

Other symbols were used on occasion as quasi-magical means of protection. For example, ceremonial boats “have distinguishing ornaments, such as the ram’s head at the prow of Amun’s boat, and a canopy amidships to protect the shrine of the god.” ⁶⁸ And occasionally other artistic representations, for example statuary, bore depictions of nome standards. ⁶⁹ Furthermore, in a similar fashion, artists employed associative principles and symbolism as a way to identify certain foreigners. ⁷⁰ For example, on a Dynasty XIX stele, foreigners are identifiable because “they are conspicuous by their helmets with horns, their round shields and the great swords with which they are depicted.” ⁷¹

IV. Marks That Could Be “True” Trademarks

Modern trademark law considers trademarks as a form of property. More specifically, trademarks are a form of intangible property, which is typically characterized as a kind of intellectual property. Thus, one preliminary matter that is worthy of consideration is to ask whether the ancient Egyptians recognized the legal principles necessary for the creation and protection of trademarks in the first place. Presumably without first establishing the necessary, antecedent legal principles relating to property—and especially intangible property—trademarks could not exist. Fortunately, we know a fair amount about the fundamentals of property law in ancient Egypt. ⁷² Furthermore, “the Egyptians of the Old Kingdom were among the first people to have recognized the existence and alienability of property rights which were intangible.” ⁷³ In addition, “ancient Egypt like all pre-industrial societies developed rules and institutions to protect consumers and traders and ensure against unfair dealing.” ⁷⁴ Although we have no evidence for governmental agencies like the Food and Drug Administration or Federal Trade Commission to oversee consumer protection or to initiate lawsuits pursuant to an ancient version of the Magnuson-Moss Warranty Act, the Egyptians did consider various types of fraud and misrepresentation as wrongful. For example, “misrepresenting the grain measure; misrepresenting measurements of length in commercial transactions; misrepresenting measurements of land in real estate transactions; misrepresenting weights in commercial transactions” were activities considered either criminal or tortious. ⁷⁵ Thus, given the clear recognition of these types of commercial fraud, it is certainly not a stretch to suggest that the Egyptians also would have considered as fraudulent a sale of goods where a seller misrepresented the authenticity of the maker of such goods. Egyptian law could have protected its marketplaces by providing redress for this kind of malfeasance. Sales of goods under such false pretenses could have been deemed theft and/or conversion. ⁷⁶

There do appear to be some marks that we might consider “true” trademarks in the modern sense (i.e., marks that serve to identify and distinguish one producer’s goods from others). For example, some wine makers “recorded on the sealing or on the jar” “the vineyard and vintage.” ⁷⁷ In addition to wine, bread is another commodity for which we have some evidence of true trademarks. According to Ruffle, “Small wooden circular stamps were probably used to impress designs on loaves of bread.” ⁷⁸ And although numerous statues bear inscriptions that designate the owner or individual who was depicted, ⁷⁹ there is one in the Yale University collection, stating that the son of the individual depicted was the artist who fashioned the statue. ⁸⁰

In addition, during Dynasty XXVI, after the Greeks established a trading post at Naucratis in the Delta on the Rosetta branch of the Nile, there is substantial evidence of Greek merchants there using red commercial marks on vases. ⁸¹ In his book, Trademarks on Greek Vases, A.W. Johnson notes that “incised lettering on vases…for commercial purposes” during “the first half of the sixth century [BC]” appears on “material from Naukratis.” ⁸² “Marks of probable or assured commercial nature are common on East Greek vases from Naukratis and Tell Defenneh; other sites have yielded very few marked pieces earlier than c. 300.” ⁸³ Johnson adds that “the overall impression is that most of these marks are owner’s inscriptions, ranging in date from the middle of the sixth century into the fourth. Few marks are repeated and there are no large groups. The occasional numerical mark should have some commercial significance.” ⁸⁴ And he also notes that one particular mark, “may indicate a price.” ⁸⁵

Naturally, we must ask why there appears to have been a scarcity of what we might characterize as true trademarks—that is, marks that function as source indicators—in ancient Egypt. The ancient Egyptians had vibrant, busy marketplaces where buyers and sellers moved about and actively haggled. ⁸⁶ Presumably the majority of sales transactions occurred face to face, and therefore buyers were familiar with the reputations of local vendors. ⁸⁷ But the very nature of the economy of ancient Egypt also probably played a role. In particular, the pharaohs were principally responsible for most long-distance trade. ⁸⁸ “The pharaoh apparently dominated foreign trade (imports and exports). In contrast, private actors like local craftsmen, farmers and merchants probably predominated in local markets and played an indeterminate role in the circulation of goods and commodities along the Nile.” ⁸⁹ The pharaoh’s control affected commercial dynamics in a number of ways. “The predominance of state economic actors in ancient Egypt had an important effect on legal and informal institutions developed (and not developed) to provide security, resolve disputes, pool capital/share risk, control agents and provide market information.” ⁹⁰ Arguably this royal/governmental predominance could easily have meant that there was less need for antitrust or consumer protection legislation and less need for private merchants to label their goods with trademarks.

Given that artists and craftsmen produced a great deal of luxury goods, such as jewelry, sculpture, and wall paintings, we might think that those who produced such goods would want to label them with trademarks. But actually most of these expensive items were made by government-employed artisans, who would have had no incentive to label their goods in such a fashion. ⁹¹ And although there must have been significant trade in the raw materials needed to produce these luxury items, it would have been the pharaoh who was responsible for procuring those raw materials. ⁹² Thus, similarly, there would have been little need for those selling raw materials to label them.

Nevertheless, we must admit that although the pharaoh was the principal player in international business transactions, he was not necessarily the only, exclusive player. “Stories and pictures depict private individuals engaging in the import and sale of goods and commodities.” ⁹³ As Professor Hawk has noted, “In sum, the participation of private merchants in Egyptian foreign trade has not been conclusively settled.” ⁹⁴ Thus, the extensive control exercised by the pharaoh on international trade cannot completely explain the paucity of trademarks in ancient Egypt; but it probably was a significant contributing factor.

V. Trade Dress: Product Design and Aesthetic Functionality

Today modern trademark law has developed an extensive jurisprudence related to product and container shapes. ⁹⁵ In fact, the validity of product and container shapes as trademarks has bedeviled courts for decades. We know, for example, that container shapes serve purposes that are functional, at least in part—they do after all hold their contents in place. But in addition to functional characteristics, some container shapes, a heart-shaped candy box, for example, are highly suggestive (if not actually descriptive or even generic). ⁹⁶ Archaeologists have discovered that the Egyptians once imported some flasks from Cypress in the shape of “an inverted poppy head,” which therefore “may have carried opium.” ⁹⁷ If these were in fact opium containers, modern trademark law might be inclined to characterize these container shapes as highly suggestive (if not actually descriptive or even generic). Thus, it appears that the international marketplace in which the ancient Egyptians participated occasionally used container shapes in a manner similar to modern trade dress.

Of course, many product and container shapes are mostly ornamental, and many may be characterized as essentially aesthetically functional. ⁹⁸ For example, W. Stevenson Smith writes of several items from the post-Amarna period, which he describes as “innumerable small objects which were fashioned as delightful trifles. *** One of the handsomest of these is a toilet spoon or ointment container of coloured ivory in the form of a pomegranate spray; in characteristically playful fashion other flowers are fastened to the branch.” ⁹⁹

VI. Generic, Descriptive, and Other Functional Marks

Many objects bear marks that appear to have been generic, descriptive, primarily informational, and/or functional. Inscriptions that communicate basic information, such as ownership, sponsorship, approval, affiliation, association, contents, volume, weight, and capacity are examples.

Conclusion

This article has explored the labeling of goods in ancient Egypt. Because it considers labeling that occurred in antiquity, it is difficult, if not impossible, to conclude with any appreciable degree of certainty whether these ancient Egyptian marks functioned as true trademarks in the modern sense—that is, identifying and distinguishing a seller’s goods in the marketplace—or whether the labels in question served one of the myriad other purposes for which objects typically are labeled, such as ownership, potential culpability, approval/certification to show that the goods have passed some type of quality inspection or testing, contents, weight, or volume. And presumably it is also possible that the same label could function in a manner that served multiple purposes simultaneously. Nevertheless, when considering any given label in context, we can make an educated guess about its purpose(s).

Because the Nile River and Mediterranean Sea provided the means for ancient Egyptian merchants to transport and sell goods to remote purchasers, ¹⁴³ arguably there was ample opportunity for those merchants to employ labels on their goods as trademarks, indicating the source of the goods that they were selling long distance (and therefore presumably information regarding the quality of the goods themselves as well as the reputation of the maker and/or seller). Hence, it is reasonable to suggest that some labels that appear on goods that Egyptians shipped on the Nile or Mediterranean could have been true trademarks in the modern sense, not merely labels intended to indicate ownership, affiliation, or some other practical information such as content. Yet the paucity of such labels is striking. And the dearth may suggest important facts regarding competition in the ancient Egyptian marketplace and pharonic control. In fact, the tremendous power in the hands of the pharaoh and priesthoods is likely the principal reason why there were no agencies comparable to the modern Food and Drug Administration or Federal Trade Commission and no legislation comparable to the Sherman Antitrust Act or Magnuson-Moss Warranty Act.

Although there is little evidence of a codified law of consumer protection or unfair competition in ancient Egypt, presumably before anyone ever thought of suing another for using a confusingly similar trademark, first, proprietors had to begin using marks as source indicators; second, consumers had to recognize the usage of such marks; and third, consumers had to begin to rely on those marks both as source indicators and also as reliable indicators of consistency of quality. Of course, as the hieroglyphic script that they used to write their language demonstrates, the ancient Egyptians were masters of symbolic expression. They also established fundamental concepts of property law and recognized intangible property. And the illustrations of military standards depicted on pottery indicate that they were familiar with the principles of cognitive association that make trademarks possible. Thus, although there are precious few extant examples of what we today might recognize as true trademarks, we can certainly see the seeds if not the roots of trademarks in the archaeological record of ancient Egypt.