How the UK’s History and Culture Has Shaped IP Law
For more than three centuries, the United Kingdom has been a pioneer in innovation and creativity. As the Annual Meeting comes to London for the first time, James Nurton talks with three British academics about the links between the country’s history and the development of intellectual property.
The United Kingdom (UK) and its predecessor states have a rich history of commercial and technological innovation. Great Britain’s economy boomed in the early modern period shaped by early industrialization and access to the resources of an Empire that at its peak covered a quarter of the world. The country also developed a culture of entrepreneurialism and creativity that has shaped the evolution of intellectual property (IP) in the UK and beyond.
The seeds of this growth were evident in the 18th century. In his Commentaries on the Laws of England, the distinguished jurist William Blackstone (1723–1780) described the English as “a polite and commercial people.” A combination of factors—including relative political stability (the system of government has remained largely unchanged since the late 17th century), the advantage of being an island nation in an age of shipping, and access to raw materials from India to the Caribbean—enabled the rapid development of trade in goods such as coffee, cotton, and tobacco.
Indeed, some of the brands that an 18th century shopper would have known are still familiar to us today. When staying in London, you might visit the FORTNUM & MASON department store (founded in 1707), the TWININGS tea shop (1706), or the BERRY BROS. & RUDD wine merchant (1698). It’s no surprise that the English were known by foreigners (including, supposedly, the French Emperor Napoleon) as “a nation of shopkeepers.”
Industry and Innovation
Economic growth accelerated in Britain in the late 18th century and early 19th century, built on technological innovation led by entrepreneurs such as James Watt, Josiah Wedgwood, and George Stephenson. As The Economist observed in a recent book review, the 1780s alone “saw the invention of the power loom, paddle steamer, threshing machine, and bifocal glasses.”
However, patents initially played only a small role in incentivizing this innovation revolution, as they were expensive, difficult to enforce, and only extended to England and Wales; separate applications were necessary for Scotland and Ireland. According to a recent study by Anya Tate of the London School of Economics, just 14,359 patents were granted between the passage of the Statute of Monopolies in 1624 and 1852, when the Patent Office (now the UK Intellectual Property Office (UKIPO)) was created.
“You can trace the development of IP law in the UK back to the Tudor period and beyond. Letters patent were granted to Flemish weavers in the 1340s, but the patent system as we know it was a 19th century invention,” explains Phillip Johnson, Professor of Law at King’s College London and an Appointed Person hearing IP cases (UK). The 1852 reforms, which were partly inspired by the Great Exhibition held in Hyde Park, London, in 1851, made patenting cheaper and simpler. Applications soared. Between 1883 (when fees were further reduced) and 1903, the number of patent filings increased from about 6,000 to about 30,000 per year.
The Industrial Revolution is rightly associated with technological innovation in industries such as manufacturing, mining, and transportation. But its impact reached much further. Thanks to a growing middle class and urbanization, there was increased demand for both consumer and luxury goods. The British particularly enjoyed sugar-based products and the 19th century saw the great confectionery entrepreneurs and philanthropists such as John Cadbury (1801–1889), Joseph Rowntree (1836–1925), and Joseph Storrs Fry (1767–1835), all of whose names live on as famous brands today.
The Industrial Revolution also afforded the middle class more free time and money to spend on leisure activities. Thomas Cook (1808–1892) pioneered tours and holidays and founded the travel agency named after him. It was also during this period that the famous British love of sport took off. The Wimbledon tennis tournament was founded in 1877. The first official cricket matches between Australia and England took place in the same year. Since 1882, the cricket test series between the two nations has been known as The Ashes. The Football League began in 1888 and many of today’s biggest clubs trace their origins to this period, including Arsenal (1886), Liverpool (1892), Manchester City (1880) and Manchester United (1878).
"The early history of trademark law in the 19th century coincided with the growth in mass consumer products: With the loss of the personal link between purchaser and vendor, trademarks became much more important."
-Ilanah Fhima | University College London (UK)
Shopping and Advertising
One impact of the Industrial Revolution and urbanization was that there was greater choice for consumers, more advertising, and less reliance placed on personal relationships. This had a direct effect on the development of branding, says Ilanah Fhima, Professor of IP Law at University College London (UCL) and Co-Director of UCL’s Institute of Brand and Innovation Law (UK): “The early history of trademark law in the 19th century coincided with the growth in mass consumer products: with the loss of the personal link between purchaser and vendor, trademarks became much more important.”
As the 19th century progressed, there were also more disputes over labeling, according to Professor Johnson. In response to these developments, the Trade Marks Registration Act 1875 established the UK trademarks registry. The first trademark was the BASS & Co red triangle logo, filed on January 1, 1876. It remains live 150 years on and is also immortalized in the painting A Bar at the Folies-Bergère by Edouard Manet (1882), which you can see at the Courtauld Gallery in central London.
Long before that, however, the common law tort of passing off had developed in the UK in the 17th century to protect the goodwill of traders from misrepresentation. “The development of passing off shows the importance of common law. You can see how that has evolved to deal with new concepts such as character merchandising and celebrity endorsement,” says Professor Fhima.
The tort of passing off continues to be important as a tool for brand owners to protect consumers from deception or confusion in the UK, and has been developed in many well-known cases, such as Advocaat (1979), Jif Lemon (1990), and Puffin v Penguin (2009). It has also prompted discussion of doctrines such as extended passing off and reverse passing off.
"Letters patent were granted to Flemish weavers in the 1340s, but the patent system as we know it was a 19th century invention"
-Phillip Johnson | King’s College London (UK)
Arts and Crafts
By the late 19th century, another important trend had emerged that would have an impact on IP law: the Arts and Crafts Movement. “Britain industrialized very quickly, enabling cheap production. That contributed to the bifurcation of art and crafts, which in turn was reflected in the law on design and copyright,” explains Johanna Gibson, Herchel Smith Professor of Intellectual Property Law at the Centre for Commercial Law Studies, Queen Mary, University of London (UK).
The movement, led by figures such as William Morris (1834–1896), was a reaction against mass production that emphasized traditional craftsmanship. It raised the question: What does it mean to be original in an age of industrialization? This period saw the opening of several fashion and design colleges and the founding in 1852 of the Victoria and Albert Museum in South Kensington, which is dedicated to applied arts, decorative arts, and design.
“With the professionalization of the fashion industry, and the emergence of the Arts and Crafts Movement, design was seen as not just functional but as desirable and pleasurable. Aesthetics were also seen as good for welfare. Arguably we’re at a similar juncture today with the rapid introduction of AI in mainstream spaces,” argues Professor Gibson.
That debate continued in the early 20th century as new industries emerged, says Professor Gibson: “In both fashion and film industries, technology created new kinds of work and there were debates about how those kinds of work should be protected. In fashion, for example, there was tension between mass production and artistic value, and you can see that act out in trademark law.”
"In both fashion and film industries, technology created new kinds of work and there were debates about how those kinds of work should be protected."
-Johanna Gibson | Centre for Commercial Law Studies,
Queen Mary, University of London (UK)
Beyond the UK's Borders
The development of IP law in the UK was due in part to the common law tradition, which has enabled judges to respond to economic and technological changes, and owes much to the teaching of IP in universities. “Today, the UK is highly respected as an IP forum, with high-profile academics and judges who deliver long and detailed, reasoned judgments. The UKIPO also continues to be very influential,” says Professor Johnson.
Because of the use of the English language and the enduring legacy of empire, UK law has been particularly important for several jurisdictions, including Australia, Canada, India, and South Africa. The UK has also long taken a leading role in the negotiation of international treaties and creation of international organizations. And, from 1973 until 2020, the UK was part of the European Union (EU) and helped shape the development of EU trademark law.
EU membership changed IP protection in the UK in many ways, not least by prompting the passage of the Trade Marks Act 1994, the first new trademark law since 1938. “UK trademark doctrines have been heavily influenced, directly or indirectly, by European law in the past 50 years, including on issues such as defenses and referential use,” explains Professor Fhima. “Thanks to EU Member States with unfair competition traditions, the EU has developed the doctrine of unfair advantage within registered trademark law, and the UK has declined to depart from that.”
Following Brexit, UK courts can hear cases and issue judgments quite quickly (compared to the Court of Justice of the European Union) and Professor Fhima thinks they are likely to be “trailblazing” in certain areas. “Recent decisions on post-sale confusion, in the Iconix and Montres Breguet v Samsung cases, are examples of that,” she says.
Today, the UK continues to be a leader in innovative and creative industries: the government’s 2025 Industrial Strategy focuses on eight such sectors: Advanced Manufacturing; Clean Energy Industries; Creative Industries; Defense; Digital and Technologies Economy; Financial Services; Life Sciences; and Professional and Business Services. No doubt this focus will prompt many more IP debates and developments in the coming years.
When the Annual Meeting comes to London next month, another chapter in the long history of IP in the UK will be written. Annual Meeting registrants will have the opportunity to experience the city, visit the museums, and see the buildings where the key developments took place.
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