In 1868, Emil Melsbach patented an ingenious mechanical movement in which a piston was driven by two cambered flyweels, thereby converting the uneven input of a treadle or a crank into smooth, regulated output. His mechanism had the general shape of a heart, which Melsbach adopted as a trademark for not only his company, but in the design of the machines themselves. He trademarked the term ‘Herz Maschinen’ (‘heart machines’) for his wildly popular domestic machines — then bristled as the term slipped began to slide into generic use for any domestic wonder, the same fate that would befall kleenex, xerox, q-tip, band-aid, and dumpster a century later.

Melsbach defended both his trademark and his trade dress against misuse by competitors, with some degrees of success. But in 1877 came the appeal from an eminent barrister named J. Paulson Stratton to go one step further: to argue that the heart symbol itself, whenever connected with mechanical invention, fundamentally infringed his rights. Melsbach declined to participate in what he feared would be seen as a rapacious overreach, given that the shape of the heart had figured in western art for centuries, perhaps millennia. But one wonders what caselaw Stratton might have made: would he have brought new protections to all inventors, or delivered crushingly overpowering controls to only the most resourceful creators — or boxed the courts into concluding that invention itself was fundamentally unprotectable? Happy Valentine’s Day 2.0ß1.

Published February 15, 2023. Copyright © 2023 Jonathan Hoefler.