• Avanee Tewari

UNDERSTANDING THE CONCEPT OF FLUID TRADEMARKS



INTRODUCTION

The digital era has created another platform for brand owners to engage with the public and to assert the presence of their being. The digital platform is one of the largest platforms that is available today, even more so in the COVID-19 situation, for brand owners to create a footprint for themselves and their brands. To optimally use the vastness the digital era provides, it is crucial for brand owners to constantly reinvent and stay trending.

WHAT ARE FLUID TRADEMARKS?

The image of a classic trademark, i.e. being a static, two-dimensional term or design used to act as a source-identifier has undergone a massive makeover over time. In contrast with the traditional concepts of trademark law that rely on consistency and repetition, the concept of fluid trademark promotes change and an advanced level of customer engagement.

In the simplest of words, a fluid trademark is a mark based on the original trademark but altered deliberately to appear as a variant of the original trademark. Fluid trademarks change over time. However, the target remains to alter the original mark in a manner that retains the basic elements of the original mark so as to continue to act as a source identifier.

As opposed to being a combination of unchanging words or logos with which the consumers develop a familiarity over a period of time as a result of use, fluid trademarks are constantly evolving interactive marketing tools. Fluid trademarks involve different variations of the underlying mark, designed in a way to invoke instant recognition that the trademarks enjoy. Redesigning a mark while maintaining its original elements can actually bolster rights in the underlying mark as presenting the mark in different formats can create an expanded commercial footprint, making the trademark stronger.

‘Google Doodles’ is one of the best examples to understand the concept of fluid trademarks. Google uses a new variant of its ‘Google’ mark, referred to as a doodle, on its homepage to commemorate holidays and/or special occasions[1]. For example, on the 30th year anniversary of the arcade game Pac-Man, Google’s homepage showcased an interactive Pac-Man game that featured the classic Pac-Man maze to form the letters of its mark “Google”[2]. It is pertinent to note that what remains constant in all of Google’s doodles is the visibility of Google’s base mark. Google reinvents its marks in a way that the underlying mark is visible enough to act as a source identifier as well as ensures that its doodles co-exist along with the original mark.

Another good example of fluidity being adopted by a brand is Absolut’s campaign in which artists and designers reinterpreted the iconic shape of its bottle in scores of different images. What is important to note here is that while the reinterpretations varied drastically from one other, the shape of the bottle stood out and in turn, the campaign strengthened brand recognition for Absolut.

In the book, Dynamic Identities: How to Create a Living Brand, it is explained that ‘brands need to constantly adapt to their fast-changing environment in order to survive. Internet, social media, and technical revolutions have given brands the opportunity to behave like living organisms.’ In view of the same, fluid trademarks offer brands the flexibility to adapt to the fast-changing environment as well interact and engage with the public; and be more than just source-identifying agents - a voice for the brand and what it represents. One of the earliest examples of fluid trademarks can be seen in the marketing strategy adopted by Lacoste, which in partnership with the International Union for Conservation of Nature, replaced its signature crocodile logo temporarily with the images of endangered species to help raise awareness about the threat of extinction.

In the wake of the COVID-19 pandemic, several brand owners have tweaked their well-known brands in order to raise awareness regarding the same. In an attempt to promote social distancing, Volkswagen appears to have distanced the two letters comprising their logo i.e. V and W, accessible here; Kappa, the Italian sportswear brand, modified its famed “Omini” logo by adding some space between the silhouette of a man and woman leaning against each other. Furthermore, Audi separated its logo to comprise four circular rings in isolation in contrast to its four interlocked rings!

However, it is essential for brand owners to be aware of the risks before jumping on to the bandwagon of fluid trademarks.

RISKS ASSOCIATED WITH FLUID TRADEMARKS

While deciding to re-invent one’s brand, it is essential to be aware of the risks of the trend. While fluid trademarks offer the opportunity to quickly modernize brands and stay relevant, they also lead to dilution and confusion among the relevant public.

Further, fluid trademarks pose a risk for companies with unfamiliar trademarks because market awareness and recognition of the mark is a prerequisite for fluid trademarks. The more a company strays from its already weak mark by using it fluidly, the less likely consumers are to associate it with the brand owner's products.

Similarly, excessive modification of the mark as a result of too many additions and different formats can potentially lead to the trademark being stretched far beyond its original vision, thereby leading to loss of recognition. Some of the risks associated with fluid trademarks are summarized as below:

o CONFUSION AMONGST THE RELEVANT PUBLIC:

As explained above, fluid trademarks are constantly changing to adapt to the environment. In view of the same, in case a brand undergoes transformation too often and of a considerable magnitude, the public at large may not be able associate the ‘reinvented’ trademark with the underlying mark, thereby creating confusion as to the source of origin of the said mark.

o THIRD-PARTY VARIATIONS OF THE UNDERLYING MARK:

As a result of their interactive nature, there are often cases of unauthorized use by consumers creating their own versions of the mark and using the same on blogs. However, to keep a check on this, companies like Google organize contests where people can submit variations of the underlying mark.

o DILUTION OF THE UNDERLYING MARK:

As a result of the above, there is dilution of the underlying mark. Since the source-identifying familiar elements, which are established over time, are no longer clearly visible and/or are lost amongst the additions made to the underlying mark, the original mark is diluted and is unable to create a brand association for its customers.

o ABANDONMENT OF THE UNDERLYING MARK:

In case companies focus on using fluid trademarks to the point of exclusion of the underlying mark, then the underlying marks are vulnerable to cancellation/abandonment.

INDIA AND FLUID TRADEMARKS

The concept of fluid trademarks is not covered under any of the Indian intellectual property laws. However, the Indian Trade Marks Act, 1999 and the Indian Copyright Act, 1957 are robust enough to accommodate the same under them, for now.

The Indian Trade Marks Act, 1999 does not explicitly talk about the concept of fluid trademarks. However, there are certain provisions that can safeguard the same. For example, a fluid trademark can be protected as a series mark - the base features may remain the same but the non-distinctive elements i.e., ornamental changes not substantially affecting their identity can differ - under Section 15 of the Trade Marks Act, 1999[3]. However, keeping in mind the dynamic nature of fluid trademarks, registering the same is not a top priority for brand owners.

Further, fluid trademarks may also be protected in India under the common law. In Proctor and Gamble v. Joy Creators[4] , the Delhi High Court ruled that “It will be sufficient if the plaintiff is able to show that the trademark adopted by the Defendant resembles its trademark in a substantial degree, on account of extensive use of the main features found in [a] trademark.” Keeping the above in mind, a fluid trademark of a company, even though not registered, can avail common law protection by proving similarity of a substantial degree.

Additionally, fluid trademarks, comprising artistic works, can easily be protected under copyright law as well. Protection under the Indian Copyright Act, 1957 will enable brand owners to ward off third-party imitations and parodies.

CONCLUSION

Fluid trademarks are a perfect example of marketing strategies mainstreaming trademarks as tools in the digital era. Fluid trademarks have challenged the basics of traditional trademarks law, i.e. the notion of familiarity and repetition. However, the use of fluid trademarks should not be arbitrary and should be done in a strategic manner in order to create a pattern in the variations.

It is essential to point out that fluidity is a privilege offered to well-known trademarks. As mentioned above, the risks involved with fluidity are lethal for brands that have not yet established a reputation for themselves. However, for well-known brands, fluid trademarks are an ideal marketing strategy to stay in vogue.

To optimize this trend, designers, brand managers and intellectual property lawyers should work hand in hand from conceptualization of the fluid mark through the clearance, adoption, use, possible registration, policing and enforcement of each iteration. Their common goals should be to do no harm, have some fun, and, by doing it right, enhance both the brand owner’s intellectual property portfolio and the appeal of its brand.[5]


[1] https://www.google.com/doodles?q=games [2] https://www.google.com/doodles/30th-anniversary-of-pac-man [3] Section 15 - Registration of parts of trade marks and of trade marks as a series.— (1) Where the proprietor of a trademark claims to be entitled to the exclusive use of any part thereof separately, he may apply to register the whole and the part as separate trade marks. (2) Each such separate trade mark shall satisfy all the conditions applying to and have all the incidents of, an independent trade mark. (3) Where a person claiming to be the proprietor of several trade marks in respect of the same or similar goods or services or description of goods or description of services, which, while resembling each other in the material particulars thereof, yet differ in respect of— (a) statement of the goods or services in relation to which they are respectively used or proposed to be used; or (b) statement of number, price, quality or names of places; or (c) other matter of a non-distinctive character which does not substantially affect the identity of the trade mark; or (d) colour, seeks to register those trade marks, they may be registered as a series in one registration. [4] CS(OS) No. 2085/2008 [5] https://studylib.net/doc/18306005/how-fluid-trade-marks-can-enhance-your-brand



The article was originally published on www.lexology.com on October 27, 2020, and can be accessed here.

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