THE CONCEPT OF FLUID TRADEMARKS

INTRODUCTION 

The digital age has given brand owners a new way to connect with the public and establish their presence. Today, the digital platform is one of the most significant platforms available, particularly during the COVID-19 pandemic, for brand owners to establish a presence for themselves and their brands. To fully leverage the opportunities provided by the digital age, it is essential for brand owners to continuously innovate and stay relevant.

WHAT ARE FLUID TRADEMARKS?

The perception of a classic trademark, characterized as a static, two-dimensional symbol or design utilized to serve as a source identifier, has significantly evolved over time. Unlike the traditional principles of trademark law that emphasize stability and repetition, the notion of a fluid trademark encourages adaptation and a higher degree of customer interaction.

A fluid trademark is a type of mark that is derived from an original trademark but has been intentionally modified to create a variation of the original. These trademarks evolve over time, but they are designed to maintain the fundamental elements of the original mark in order to continue serving as a recognizable identifier of the source.

Fluid trademarks are not unchanging symbols or words that consumers become familiar with over time. Instead, they are continuously changing and interactive marketing assets. These trademarks include different versions of the original mark, all aimed at instantly triggering recognition. By updating a mark while maintaining its essential elements, the rights to the original mark can be reinforced. Displaying the mark in various formats can extend its commercial impact, making the trademark more resilient.

Google Doodles demonstrate how a company can utilize flexible trademarks. Google creates unique variations of its logo, known as doodles, to celebrate holidays and special events on its homepage. For instance, on the 30th anniversary of the arcade game Pac-Man, Google featured an interactive Pac-Man game on its homepage, where the classic Pac-Man maze formed the letters of the Google logo. It's important to note that in every Google Doodle, the original Google logo remains visible. Google manages to reinvent its logo while ensuring that the original logo is still recognizable as a source identifier, allowing the doodles to coexist alongside the base mark.

Absolut's campaign is a great example of how a brand can embrace fluidity. The campaign involved artists and designers reimagining the distinctive shape of the Absolut bottle in numerous diverse images. It's noteworthy that despite the significant variations in the reinterpretations, the bottle's shape remained distinctive, ultimately reinforcing brand recognition for Absolut.

In the book "Dynamic Identities: How to Create a Living Brand," the concept of brands constantly adapting to their rapidly changing environment in order to survive is explored. The influence of the internet, social media, and technological advancements has allowed brands to evolve and behave like living organisms. This concept has given rise to the idea of fluid trademarks, which enable brands to be more flexible and responsive to the fast-changing environment. These trademarks also allow brands to effectively interact and engage with the public, serving as more than just symbols of identification. They become a voice for the brand and its values. An early example of this concept is demonstrated in Lacoste's marketing strategy, where the brand temporarily replaced its iconic crocodile logo with images of endangered species in collaboration with the International Union for Conservation of Nature. This initiative aimed to raise awareness about the threat of extinction and showcased the brand's commitment to social and environmental causes.

Amid the global COVID-19 pandemic, many well-known brands have adapted their logos to convey messages of social distancing and awareness. For instance, Volkswagen has subtly distanced the two letters in its logo, V and W, as a nod to the importance of maintaining physical distance. Similarly, Kappa, the renowned Italian sportswear brand, has modified its iconic “Omini” logo by adding space between the silhouettes of a man and woman, symbolizing the need for separation. Additionally, Audi has reimagined its logo, featuring four distinct circular rings, each isolated from the others, in stark contrast to its usual interlocked design. While these adaptations serve as powerful visual reminders of the current global situation, it's crucial for brand owners to consider the potential risks associated with altering their trademarks before following this trend.

RISKS ASSOCIATED WITH FLUID TRADEMARKS

When contemplating a brand reinvention, it's vital to understand the potential pitfalls. While fluid trademarks offer the chance to swiftly update brands and remain pertinent, they also carry the risk of muddying the brand's identity and causing confusion among its audience. Furthermore, companies with lesser-known trademarks may encounter difficulties with fluid trademarks, as market awareness and recognition are imperative prerequisites. The more a company deviates from its original mark by using it in a fluid manner, the less likely consumers are to link it with the brand's offerings. Moreover, excessive modifications and diverse variations can stretch the trademark beyond its initial vision, potentially resulting in a loss of recognition. In essence, the risks associated with fluid trademarks encompass:

·         CONFUSION AMONGST THE RELEVANT PUBLIC:

Fluid trademarks are designed to evolve and adapt to their surroundings. However, if a brand undergoes frequent and significant transformations, it may become difficult for the public to recognize the "reinvented" trademark as the original mark. This could lead to confusion about the true source of the mark.

·         THIRD-PARTY VARIATIONS OF THE UNDERLYING MARK:

"Due to their interactive features, trademarks are sometimes misused by consumers who create their own versions and use them on blogs without permission. To address this issue, companies such as Google hold contests where individuals can submit their own interpretations of the original trademark."

·         DILUTION OF THE UNDERLYING MARK:

Due to the changes mentioned above, the original brand's identity is weakened. The distinctive elements that customers have come to recognize over time are no longer easily identifiable or are overshadowed by new additions to the brand. As a result, the original brand loses its impact and fails to establish a strong connection with its customers.

·         ABANDONMENT OF THE UNDERLYING MARK:

When companies overly prioritize using fluid trademarks instead of the original underlying mark, the original marks become at risk of being cancelled or abandoned.

INDIA AND FLUID TRADEMARKS

The legal framework for intellectual property in India does not explicitly recognize the concept of fluid trademarks. However, the Indian Trade Marks Act, 1999 and the Indian Copyright Act, 1957 provide a strong foundation to accommodate such trademarks. Although the Trade Marks Act of 1999 does not explicitly address fluid trademarks, it contains provisions that can protect them. For instance, a fluid trademark can be safeguarded as a series mark under Section 15 of the Trade Marks Act, 1999, where the core features remain consistent but non-distinctive elements, such as ornamental changes, can vary without substantially affecting their identity. Despite these provisions, given the dynamic nature of fluid trademarks, brand owners may not prioritize their registration.

In India, fluid trademarks can receive protection under common law, as demonstrated by the ruling in the case of Proctor and Gamble v. Joy Creators by the Delhi High Court. The court emphasized that proving substantial resemblance between the defendant's trademark and the plaintiff's trademark, due to extensive use of key features, is sufficient for establishing infringement.

Furthermore, artistic works incorporated into fluid trademarks can be safeguarded under the Indian Copyright Act, 1957. This protection empowers brand owners to defend against unauthorized imitations and parodies.

CONCLUSION

Fluid trademarks represent a fascinating shift in the world of marketing, as they have become a prominent tool in the digital era. By challenging traditional trademark laws, fluid trademarks have redefined the concept of familiarity and repetition. However, it's crucial to note that the use of fluid trademarks should be strategic, creating a discernible pattern within the variations.

It's important to emphasize that the flexibility of fluid trademarks is typically reserved for well-known brands. For lesser-known brands, the risks associated with fluidity can be detrimental. On the other hand, for established brands, fluid trademarks serve as an effective marketing strategy to maintain relevance.

To fully leverage this trend, collaboration between designers, brand managers, and intellectual property lawyers is essential. They should work together from the initial conceptualization of the fluid mark through its clearance, adoption, use, potential registration, monitoring, and enforcement of each iteration. Their shared objectives should be to minimize negative impact, infuse creativity, and, when implemented effectively, strengthen both the brand owner’s intellectual property portfolio and the attractiveness of its brand.