Brand Fallen Victim to World War

Rights for Aspirin were transferred to the winners of the war according to the peace treaty… but was it actually?

Image: Publication of 11 November, 1918 on the end of the World War [https://i.pinimg.com/originals/c9/8f/93/c98f939731a16445af5609a3f7d039e7.jpg ]

More than 100 years ago the world celebrated the end of World War I, “The War to end all Wars”. It had crushed global empires, claimed millions of lives, and changed drastically the course of the history in the decades to follow.

Image: Hall of Mirrors of the Versailles Palace where the peace treaty ending World War I was signed.

The peace treaty signed in the Hall of Mirrors of the Versailles Palace was aimed not only at eliminating all the existing international controversies, but also at imposing onerous responsibilities on the defeated states.

Many mentions can be found in the press related to one of the clauses of the Versailles treaty according to which the defeated Germany was supposed to transfer the rights for the use of the Aspirin brand, initially owned by German company Bayer to the winners as part of the reparations.

Source: Abstract from “Genericide”, an article published on BBC at https://www.bbc.com/news/business-27026704

Other mentions:

Henry Kissinger, Diplomacy

Today I Found Out

World History

If this is true, then we have here a unique case of alienation of a trademark held by a private company and its transfer to the winning states or its forced expiration, according to a peace treaty.

Image: Original copy of the Versailles peace treaty of 11 November, 1918 [https://blog.nationalarchives.gov.uk/wp-content/uploads/2018/11/Armistice-of-Compiegne.jpg ]

We have completed a special research to find out the fate of the Aspirin brand after World War I.

Image: William Orpen, The Signing of Peace in the Hall of Mirrors, Versailles, 28th June 1919. Imperial War Museum, London

The study of the two-hundred page Versailles peace treaty, detailing the new boundaries of states, the amounts and the methods of payment of the contribution, the structure of the Ligue of Nations, etc., has produced no trace of mention of any direct obligations imposed on Germany or on Bayer related to the transfer of the rights for the Aspirin trademark or to the cancellation of the trademark.

In addition, our study has found no supplementary unpublished secret agreements that may have dealt with the trademark for Aspirin.

Thus, it would be erroneous to assume that according to the Versailles treaty Germany gave up its rights for the Aspirin trademark in favour of other countries.

Image: Package of Aspirin of 1899.

The Aspirin brand was one of the world’s first mass consumer brands, sold and advertised in dozens of countries. We have studied its legal protection on the territory of Germany and the countries that won World War I in order to understand the evolution of related trademarks at the time.

Our inquiry has shown that the destiny of the brand was different in each of the countries.

When Bayer launched its brand at the global market at the end of the XIX century, it obtained patents for the method of aspirin production in the main countries of the world and simultaneously filed an application for the registration of a corresponding trademark.

The legal duration of a patent in many countries, including the US, expired in March 1917. Under certain jurisdictions, this had happened prematurely, long before the war broke out. For instance, in the UK, the patent was cancelled in 1905.

The Aspirin trademarks filed for registration in various countries had different fates.

For instance, in Germany, Bayer registered the trademark in 1899, and it is still valid [https://register.dpma.de/DPMAregister/marke/register/36433/DE].

In France, Bayer did not have a registered trademark at the beginning. This was due to the French authorities’ stand in the case of Pyramidon brand, which led to prohibiting the protection of medical products as trademarks in France.

At first, Bayer sold aspirin in France under the brands Aspirine Vicario and Rhodine.

Image: Package of Rhodine
Image: Package of Aspirine Vicario

In 1910, Bayer set up a branch in Paris.

Present view of the building that housed Bayer’s French branch in the 1910s.

In the UK and the US, aspirin was sold through subsidiary companies using trademarks registered in both countries at the end of the XIX century.

The beginning of World War I impacted Bayer’s business and the global Aspirin brand severely. In fact, it was the war itself, and not the subsequent Versailles peace that determined the future of the brand.

Wolrd War I broke out on 1 August 1914.

Image: Part of the original plan of the beginning of World War I (the Schlieffen Plan) [http://www.nationalarchives.gov.uk/education/greatwar/g2/cs1/g2cs1s1nf.htm ]

During the first year of hostilities between the Triple Entente and the Triple Alliance, the enemies of Germany took extraordinary government measures against German citizens and businesses.

On 5 February 1915, the British Board of Trade, a department of the UK’s Privy Council, ruled the end of protection of rights for the Aspirin trade name. Any British competitor of Bayer was entitled to produce medicine under this name. A year later, the British government issued an act on the complete shutdown of Bayer’s British branch.

Image: Excerpt from the ruling of the Board of Trade published in The Lancet in February 1915 [https://books.google.ru/books?id=EwMndWYjLX8C&pg=PT66&lpg=PT66&dq=Board+of+Trade+1914+Aspirin&source=bl&ots=ojDpewUS8l&sig=P1tvyZab9AoDtTOhuPLDGmo6DDI&hl=ru&sa=X&ved=2ahUKEwj_4_rrlsjeAhVvwosKHc5ZA6QQ6AEwAHoECAkQAQ#v=onepage&q&f=false]

In 1915, France followed in the steps of the UK by imposing a “ban on all business transactions with companies owned by the enemy”, arresting German property on the French territory and putting it on public auction. However, as the Aspirin brand had never been registered in France, it could not be cancelled either.

Image: Announcement of sales of former property of the French branch of Bayer in French papers

The United States only joined the war on 6 April 1917, almost a month after the US patent for aspirin production method expired.

The shares of Bayer’s American subsidiary owned by the German company were arrested in autumn 1917, and on 12 December 1918, after the ceasing of hostilities in Europe, they were sold at public auction. The buyer (Sterling Products, Inc.) also acquired the rights for the Aspirin trademark in the US.

Image: Advertisement of Aspirin brand in The Sun newspaper (New-York) two weeks after the US entered the world war [https://chroniclingamerica.loc.gov/lccn/sn83030431/1917-04-21/ed-1/seq-3/]

Later, the Aspirin trademark in the US was cancelled. On 8 March 1919, an expert of the US Patent and Trademark Office (USPTO) ruled the end of legal protection of the trademark due to its “incorrect use”. The expert’s opinion stated that “the trademark was used by the licensees of the rightsholders in violation of the production method established for the trademark”. This was sufficient for the cancellation of the brand on the US territory.

Thus, contrary to the original belief that the copyright for Aspirin trademark was part of the Versailles peace conditions, we can see that even before the signing of the final version of the peace treaty, which took place in summer 1919, in the US the rights were held by an American company not directly related to Bayer. Besides, the rights had expired by the moment of the signing.

The legal opinion stating that before the cancellation Aspirin trademark could not be have been used to challenge medicines sold at American market by competitors using the word “aspirin” was later advanced by an American court in the case Bayer Co. vs United Drug Co. The ruling is available here.

Excerpt from Druggist Circular for January 1919 [https://babel.hathitrust.org/cgi/pt?id=mdp.39015086594515;view=1up;seq=56]

However, the expropriation of subsidiaries and the cancellation of trademarks on the territories of key countries fighting Germany in World War I did not produce the same effects in some other states.

For instance, in Canada, a dominion of the British Empire, the Aspirin trademark was maintained. Despite a lawsuit initiated against the brand, the British ruling on the cancellation of the British Aspirin trademark, and the effective cancellation of the US trademark, a Canadian court considered that there were no sufficient legal grounds for terminating the protection of the trademark in Canada.

The protocol of the Canadian court hearing is available here.

Thus, the Aspirin trademark is still valid on the territory of modern Canada, as well as modern Germany.

Image: Excerpt on the validity of the Aspirin trademark in Canada: [http://www.cipo.ic.gc.ca/app/opic-cipo/trdmrks/srch/viewTrademark.html?id=35869-00&lang=eng&status=OK&fileNumber=35869&extension=00&startingDocumentIndexOnPage=1]

In a similar manner, Bayer managed to maintain its trademarks in most countries engaged in World War I, such as Belgium, Italy, Switzerland, Spain, and Portugal.

* * *

World War I was a major shock for the global consumer brand.

On the contrary, the Versailles peace that put an end to the war, brought some clarity and stability, and allowed Bayer to recover from its losses and enter a new stage of development.

While recognizing the legality of the confiscation of German property during the hostilities at the territory of certain winner states (Art. 297 of the Versailles treaty), the peace treaty also indirectly recognized Bayer’s rights for its brand in the territories separated from Germany as the result of the war.

Image: French troops entering Strasbourg in Alsace in Movember 1918 [https://journals.openedition.org/alsace/1949]

Germany’s main loss in World War I was Alsace and Lorraine. Even though from 1919, the region became part of France, where the Aspirin trademark was not registered, Bayer managed to protect its brand on the territory of Alsace and Lorraine, already French, by using its right to register a German trademark to fight off competitors. We have established that the company exercised this right in the region till 1927 at least.

* * *

By the one-hundredth anniversary of the end of World War I Bayer has managed to restore significantly its rights for the Aspirin brand in the key countries.

In 1994, Bayer acquired the legal successor of Sterling Products, Inc., the very company that had bought all Bayer’s American property at public auction in 1918, including the Aspirin trademark, still valid at the time.

At present, the Aspirin brand is protected in more than forty countries thanks to an international trademark.

Image: Aspirin trademark in the international trademark register

This proves that despite the common belief — common even among lawyers — “aspirin” is not a general term, but a genuine trademark.

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Author: Igor Nevzorov, Translation: Ekaterina Bereznikova

Stories related both to intellectual property law and history of humankind from the places where important events occured.