Fluid Trademarks

Can making minor and temporary changes to your trademark strengthen your brand, or undermine it through increased consumer confusion?

 

Principles of Trademarks

Trademarks act as a “badge of origin”, enabling consumers to identify the commercial source from which goods and services come from.  They distinguish the goods and services of one business from those of other businesses within the same industry.  This has the effect of minimising confusion and protecting the consumer from counterfeit or deceptive offerings from third parties.

 

What is a Fluid Trademark?

Fluid trademarks are marks that display temporary modifications to, or variants of, the underlying trademark, often to reflect significant events or support commercial promotions.  This may be accomplished by ornamentation or decoration of the trademark whilst retaining its essential characteristics, or by employing more substantial design changes.

One of the most well-known examples of a fluid trademark is the Google Doodle.  These are variants of Google’s underlying logo, either static or animated, that reflect notable events relating to the day or period for which they are displayed.  For example, key anniversaries, sporting events, or the birthdays of historical figures.

In recent months as a consequence of the Covid-19 pandemic, a number of companies have introduced fluidity to their marks with elements of “separation”, in order to support the message of social distancing that we’re all encouraged to adopt in our fight against the virus.  These include the golden arches of MacDonald’s and the rings of Audi, both of which show the respective elements separated rather than attached or interlocked as they normally would be.

 

Pros and Cons of Fluid Trademarks

Fluid trademarks can strengthen the relationship between the consumer and the brand by demonstrating that the brand is energised, evolving and up-to-date with current trends.

However, there are also risks.  People might become confused if the mark is constantly changing and doesn’t appear to consistently identify the source of the goods or services being provided.  Third parties might create their own unauthorised variations of the mark, which could be relatively difficult to police particularly if the brand is employing a large number of fluid variants.  Further, the underlying mark may become vulnerable to claims of non-use and thus be at risk of removal from the trademark register, on the basis that it is not being used in its registered form.

The use of fluid trademarks should be carefully considered and managed, otherwise they risk weakening or even destroying the original mark and the brand it represents.

However, provided they do not undermine the original mark and its purpose, and are applied as part of a structured strategy, fluid trademarks can be a modern and contemporary tool to promote a brand and strengthen the relationship with the market, in ways conventional trademarks may not.

Alistair Curson

 

References

Bainbridge D. (2012). Intellectual Property, 9th edn, Pearson Education Limited, Harlow, England.

Gaurav K. (2020, March 28). “COVID-19: Audi, McDonald’s And Other Brands Redesign Logo To Promote ‘social Distancing’”. Retrieved June 27, 2020, from: https://www.republicworld.com/world-news/rest-of-the-world-news/covid-19-audi-mcdonalds-and-other-brands-redesign-logo-for-social.html

The Fashion Law. (2020, June 09). “Fluid Trademarks Can be Marketing Gold But Should Brands Really Up-and-Alter Their Famous Logos?”. Retrieved June 27, 2020, from: https://www.thefashionlaw.com/fluid-trademarks-can-be-marketing-gold-but-should-brands-really-up-and-alter-their-famed-logos/

Pearson L, Welsh JA. (2013, August 27). “Fluid Trademarks: Dynamic Brand Identities for Dynamic Times”. Retrieved June 27, 2020, from: https://www.acc.com/resource-library/fluid-trademarks-dynamic-brand-identities-dynamic-times

Petillion F, Vanleenhove C. (2009, September). “Protect your fluid trade marks in Europe”. Retrieved June 27, 2020, from: https://www.crowell.com/documents/Protect-your-fluid-trade-marks-in-Europe.pdf

Spruson & Ferguson. (2014, October 20). “What Are ‘Fluid Trademarks’?”. Retrieved June 27, 2020, from: https://www.spruson.com/trade-marks/fluid-trademarks/

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