ABSTRACT
The elusive intangible property right known as ‘goodwill’ serves as the central organizing concept for US trademark and unfair competition laws. It also plays an important, but very different, role in the common law tort of passing off in the United Kingdom and Commonwealth countries. Yet the full history of goodwill has not been explored, and many historical accounts of American trademark law have incorrectly identified the concept of commercial goodwill as a nineteenth-century legal creation. The term goodwill, however, was used to describe an intangible property right as far back as the sixteenth century. Commercial goodwill existed as a valuable cultural and market reality for generations – eventually finding its way into the common law by the eighteenth century. During the nineteenth century, American courts often relied on the various strands of doctrine developed by British law and equity courts, but the Supreme Court took US law in a new direction when it placed goodwill at the center of its trademark regime in 1916. By doing so, the United States committed to resolutely use-based trademark protection, in contrast to the formal trademark registration models favored by most jurisdictions around the world. This article explores the earliest origins of commercial goodwill to show that it was already a well-established property right before the advent of modern trademark law and to demonstrate how goodwill protection had an impact on the further development of US trademark law. By reframing the historical narrative of American trademark law to contextualize the relationship between goodwill and trademark law doctrines, and contrasting that relationship with the UK law, it sheds light on some of the challenges and tensions seen in US trademark law today.
Lauriat, Barbara, Borrowing Goodwill (July 25, 2025), Boston College Law Review, volume 67 (forthcoming 2026).
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