Consistency and Reputation are two building blocks of a brand. In recent times the digital economy has seen a surge due to the pandemic. Fluid Trademarks are evolving the way the world understands the concept of trademark. Supporters of this concept believe that it helps in increasing the brand awareness along with maintaining the interest of the current consumers. Besides the occasional changes that a person may fabricate every decade a fluid trademark can see a change regularly.
Fluid trademarks share same characteristics as the general trademarks: they can be a word, symbol or design which differentiates it from the other products of a similar nature in the market. These marks are famous for keeping the originality of the logo or symbol intact with some minor changes to the design. A very prominent example of fluid marks can be Google which keeps on making changes to its logo in order to identify itself with the birthdays of famous personalities or to commemorate important events across various countries. Also many prominent companies like Starbucks which changed it mermaid logo with a logo wearing a mask in order to raise awareness about COVID 19 and similarly Audi made use of fluid trademark by maintaining a distance between the 4 rings signifying social distancing.
Fluid trademarks enable the company to stylize its current logo and stay relevant in the marketplace. Fluid trademarks also help the company to increase awareness about its products and also educate the people about the dynamic and imaginative nature of the brand.
Registration of Fluid Trademarks
Trademarks are a sign signifying novelty and uniqueness of a brand. It helps distinguish a brand from other brands of similar nature in the market. Hence registration of trademark in order to establish uniqueness and novelty is extremely important. After the global pandemic the world has changed manifold and so has the way in which brands try to advertise their products. Earlier only Google used to make frequent use of the fluid trademarks but post COVID many companies have resorted for the same and hence the awareness for registering such trademarks has increased too. Under Section 15 of the Indian Trademarks Act, a procedure for registering series of trademarks is available. Section 15 of Indian Trademark Act states as follows: – “person claiming to be the proprietor of several trademarks in respect of the same goods or services which, while substantially resembling with each other in the material particulars thereof, yet differ in respect of matter of a non-distinctive character which does not substantially affect the identity of the trademark…” While this definition might be able to explain the distinctiveness of the fluid trademark to a large extent but the dynamic nature of the mark is not the only factor which forces the proprietor to get it registered in the first place. Section 15 will only come into play when the types of marks that can be used are anticipated. With each passing event as severe as COVID-19 the companies try to maintain their relevancy in the market. Also Section 15 has one major limitation as it does not allow the trademark to be converted into a series of mark after a particular mark is successfully registered. Hence Section 15 of the Indian Trademark Act does not adequately justify the dynamic nature of the fluid marks.
The trademark itself finds a say in the common law although it is not explicitly mentioned in the Indian Trademarks Act, 1999 and Indian Copyright Act, 1957 still these acts are sufficient enough to accommodate the principle governing fluid trademarks. Like in the famous case of Proctor and Gamble vs Joy Creators, the Delhi High Court held that it will be sufficient if the Defendant is able to show that the trademark adopted by him/ her resembles the original mark up to a certain degree.
Risks associated with fluid trademarks
While choosing to re-design one’s image, it is fundamental to know about the dangers of the trend. While fluid trademarks offer the chance to rapidly modernize brands and stay relevant, they likewise lead to weakening and disarray among the important public.
Further, fluid trademarks represent a danger for organizations with new brand names since market mindfulness and acknowledgment of the imprint is an essential for fluid trademarks. The more an organization strays from its generally frail imprint by utilizing it smoothly, the more uncertain purchasers are to connect it with the brand proprietor’s items.
- Essentially, inordinate alteration of the imprint because of such a large number of augmentations and various configurations can conceivably prompt the brand name being extended a long ways past its unique vision, accordingly prompting loss of acknowledgment. A portion of the dangers related with Fluid Trademarks are summed up as underneath:
- CONFUSION AMONGST THE RELEVANT PUBLIC:
As clarified above, fluid trademarks are continually changing to adjust to the trend. Taking into account something similar, if the brand goes through changes frequently and for a significant extent, then the society everywhere may not be able to identify itself with the brand name with the basic imprint, in this way creating a confusion regarding the wellspring of source of the said mark.
- THIRD PARTY VARIATIONS OF THE UNDERLYING MARK:
As a result of their interactive nature, there are regularly instances of illegal use by consumers thereby making their own forms of the mark and utilizing something similar on websites. In any case, to keep a check on this, organizations like Google put forward the challenges where individuals can submit their variations of the underlying trademark.
- WEAKENING OF THE UNDERLYING MARK:
Because of the above, there is weakening of the basic trademark. Since the source-distinguishing recognizable components, which are set up over the long run, are not, at this point obviously noticeable and additionally are lost among the options made to the underlying mark, the original mark is weakened and can’t make a symbiotic relationship with its customers.
- ABANDONMENT OF THE UNDERLYING MARK:
In case where the companies try to use the mark up to a point where its relevance itself becomes a question then the underlying marks are vulnerable to cancellation.
MITIGATION OF RISKS ASSOCIATED WITH FLUID TRADEMARKS
- The original mark should be used continuously without any interruptions with the trademark registration in place.
- Before adopting the fluid trademark it is important to ensure that the original mark is strong enough such that people can identify the brand easily
- The primary feature of the mark should remain intact so that the consumers are able to identify the fluid mark easily.
- Fluid marks should not be random and it should be relevant to the brands primary objective and identity.
- It is important to carry out a preliminary search of the mark in order to avoid the copying of the already existing mark in the market.
- Each variation shall be protected by the registration of the mark.
Fluid trademarks are a perfect example of the marketing strategies in order to stay relevant in the market. With the onset of the fluid trademarks people have started to take a look at the marks as the distinctive and modern in nature rather than the old traditional way of familiarity and repetition. However the use of fluid trademarks should not be arbitrary and should be done in a way to create pattern of variations.
Fluid trademarks are a way to stay relevant in the market. This strategy can only be adopted by the well known brands which have already established a brand reputation in the market. As mentioned above the fluidity of the marks can prove to be lethal for the brands which have not yet established themselves in the market.
To make this trend more viable for the brand owners there needs to be a concerted effort made by the designers, brand managers and the intellectual property owners from conceptualization to its enforcement.
- Fluid Trademarks: An Alter Ego for Brands? SpicyIP, https://spicyip.com/2020/08/fluid-trademarks-an-alter-ego-for-brands.html (last visited Mar 25, 2021)
- Fluid Trademarks: Will Companies Go With The Flow? Mondaq.com, https://www.mondaq.com/unitedstates/trademark/854180/fluid-trademarks-will-companies-go-with-the-flow (last visited Mar 25, 2021)
- Identity crisis: Understanding the concept of Fluid Trademarks Lexology.com, https://www.lexology.com/library/detail.aspx?g=f5951404-fa12-4e7f-b239-e5610541c77d#:~:text=In%20the%20simplest%20of%20words,Fluid%20trademarks%20change%20over%20time. (last visited Mar 25, 2021)
By: Tanvin Anand
Amity Law School, Noida