FLUID TRADEMARKS – WAVE OF THE FUTURE – Eshwars
Call Us +91 44 42048335

FLUID TRADEMARKS – WAVE OF THE FUTURE

Authored by Shyamolima Sengupta & Saisunder N.V

Heraclitus, the well-known Greek philosopher rightly said that- “The only constant in life is the change”. These thoughtful words have become more relevant than ever in today’s rapidly growing markets, where consumer behavior is ever-changing, which is attributable largely to the availability of information readily on any aspect of procurement and also further because of the plethora of product and service choices in the market. This ever-changing landscape in consumer choices and behavior has also led to innovation in branding of products and services and has challenged the conventional principles of branding that a trademark should be static to become stronger.

It is in this context that “Fluid Trademarks” have come into existence as a dynamic marketing tool and are becoming an increasingly popular mode of branding where brand owners adopt novel ways to grab the attention of their consumers by way of a brand rejuvenation in order to retain consumer engagement but nevertheless bearing in mind the all-important aspect and fundamental purpose of trademark viz., “Source Identification”.

Fluid trademarks are marks that are based on an original popular and well-known trademark but which have been rejigged intentionally to appear as a number of variants while retaining some basic and important elements and features of the original mark in order to maintain brand recognition and source identification. While browsing and surfing through the internet, we often encounter many popular traditional trademarks / brands in different variations. These are the new age trademarks as they are eye catching and ever changing which are created more likely to attract the public’s attention in the commercial space in this digital era. These marks prove to be a big hit for the brand owners to connect with people with the changing trends in the market and by customizing the traditional marks as per the current occasion, festival, season, weather, etc. to leave a message.

Fluid marks can take several forms, including logos, graphic symbols, verbal elements, or a combination thereof (i.e. any type of identifier that qualifies as a trademark). Google ‘Doodle’ is the quintessential “fluid trademark”.  While its primary mark and logo remain intact, from time to time–and for one day only – Google changes its conventional, static mark for a colorful, whimsical, and often dynamic alter-ego. Some of the other famous fluid marks are Perrier bottles, Absolut Vodka, MTV Channel logo, etc.

It is pertinent to mention that people should not confuse fluid trademarks as daily updates or family of marks or mere presenting a mark in different colours. The different ways in which a traditional trademark can be represented as a fluid trademark are (a) by ornamenting the trademark, (b) changing background of the trademark, (c) filling a frame like the icons of the television channels, (d) employing moving designs and (e) adopting multiple and ever-changing designs.

Why do companies go for Fluid trademarks?

    • Fluid marks are more eye catching than a mark that stays the same.
    • To maintain interest in the brand. Capture consumer attention – particularly online.
    • Strengthen brand awareness by interacting with consumers.

    While fluid trademarks present a novel way of marketing their trademarks to sustain customer engagement and interest in a brand, such trademarks also present a challenge to brand owners from a legal perspective in terms of their protection under the trademark laws. Some of the potential challenges for a brand owner in using fluid trademarks are as under:

      • There is risk of cancellation based on a claim of abandonment if the original mark is not used as registered.
      • It is not cost-effective to have all the variants of the mark registered.
      • In case the trademark owner has not applied for trademark protection for its variants, he cannot initiate a procedure when a third party uses one or more signs that correspond to these variants. The protection only extends to his registered underlying mark.

      Accordingly, it is important for brand owners to bear in mind the following important legal aspects from a trademark protection perspective while adopting fluid trademarks as a branding tool:

        • It is prudent to first register the original trademark, as it may not be practical to register every single variant especially since they have a very short shelf life that serve a limited purpose.
        • Marks should already be established marks with a history of use and consumer recognition, so that the trade and public can understand and relate to the variant form.
        • The primary mark should be used continuously and uninterruptedly.
        • The main characteristics of the original mark should remain intact in the variant mark; otherwise the trade and public may fail to recognize it in its variant form, thus defeating the purpose of the marketing strategy.
        • It is essential to conduct due diligence before adopting the respective fluid theme to avoid imitating other’s existing brand/concept/idea.
        • Protecting each variation through copyright registration, when appropriate.
        • The variant marks can also be protected as Series trademarks.

        Summary

        The trademarks perform as a source identifier by extensive usage. However, in the rapidly changing world, the brand owners adopt every possible approach to keep up with the competition and grab the consumer’s attention. The fluid trademarks though help to popularize the mark by adopting a new and trending approach, it should be used wisely in the Indian market given that the concept of fluid trademarks is yet to be tested in the Indian Courts and can be safeguarded only though common law protection and by placing reliance on the original registered mark. If used judiciously, the owners can make most out of the same for their brands.

        “If we don’t change, we don’t grow. If we don’t grow, we aren’t really living” – as quoted by Author Gail Sheeshy.

         

Eshwars | House Of Corporate & IPR Laws,
Chennai | Delhi | Bengaluru | Mumbai | New Jersey

Board: +91 - 44 - 42048335
+91 - 44 - 42048235