Fluid Trademarks- as the name suggests are trademarks that are variations of the main mark or brand designed to reflect specific events, seasons or trends. This type of marks embraces flexibility and innovation in brand identity allowing businesses to adapt their brand identity in a world where the change is constant and forward looking.

The main purpose of a Trademark is to establish a unique brand identity to the products or services enabling the consumer to easily identify and associate them with the company.  Fluid Trademarks have developed into a marketing tool by businesses to bring their products and services much closer to the consumer by boosting interest and to create emotional connections by spreading a message of social cause or theme.

This trend of using Fluid Trademark was prevalent during the COVID-19 pandemic, when many businesses used Fluid trademarks to encourage social distancing. For instance, Audi arranged the rings in their logo without the interlink to promote social distancing, the mermaid of Starbucks and the Amul girls were illustrated with masks covering their faces. Another classic example of Fluid Trademark would be the GOOGLE DOODLE, which changes to commemorate an event, or tribute to a famous personality etc.

Fluid Trademark in India and challenges:

There are no specific provisions of law envisaging the protection of Fluid trademarks under Indian Intellectual Property law. However, under Trademark Act, 1999, a provision for registration of a series of trademarks is available which outlines  ownership of several trademarks for identical goods or services that exhibit considerable similarities. Nevertheless, these trademarks may vary in aspects that are non-distinctive and do not change the core identity of the trademark. Although this interpretation closely corresponds with the idea of fluid trademarks, the dynamic characteristics of fluid marks do not inherently encourage brand owners to proceed with registration.

Distinctiveness:

The Trademarks Act of 1999 mandates that trademarks must be distinctive and able to differentiate the goods or services of one entity from those of others. However, the nature of fluid trademarks, which can change or develop over time, poses challenges in sustaining the distinctiveness. Having said that, the fluid trademark can be protected as a series mark –the base features may remain the same, and the non-distinctive elements, do not substantially affect the identity of the base mark.

Chances of abandonment/cancellation:

There are challenges in enforcing protection for the Fluid trademarks because they tend to change or are altered often and look different from their registered versions. This further puts them at risk of being cancelled or rectified for non-use.

Confusion among consumers:

Another downside would be, at times, businesses may become overly enthusiastic about the idea of fluid trademarks and create variations that end up confusing their customers, leaving them uncertain whether they are seeing the authentic brand or just an imitation. It can also confuse consumers, as changes in the trademark might make it unclear as to the source of the primary mark based on which it has been derived from or an imitation from the other similar marks.

At several instances, the Honourable Courts have emphasised the importance of upholding the integrity and distinctiveness of a trademark, which helps prevent consumer confusion and supports the legitimate interests of trademark owners.

Enforcement:

Another challenge is when the owner has not protected the new versions of the trademark. In these cases, they cannot claim infringement if someone else uses a similar version. However, the owner could take action through a suit for passing-off or by claiming copyright infringement for the creative elements in the new versions.

The Delhi High Court ruled in Procter & Gamble Company v. Joy Creators that “It will be sufficient if the plaintiff can 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.” Thus, a company’s fluid trademark, even if not registered, can avail common law protection by proving similarity of a substantial degree. This ruling sends a clear message to companies about the serious consequences of infringing trademarks, even when there is only a minor or partial replication or alteration.

The artistic component present in the fluid trademarks can be protected under the Copyright Act, 1957.

To address the challenges of fluid trademarks, businesses can adopt the following strategies:

  • Maintain Source Identity: The variations of the fluid trademark should be similar enough to the original mark that consumers can still recognize the brand. This ensures that the essence of the brand identity is preserved.
  • Limit over alteration of the mark: Overly changing the mark can confuse customers and dilute the uniqueness of the original trademark. Creativity should be balanced with the core elements of the brand to maintain its distinctiveness.
  • Use Copyright Protection: To support any copyright claims in case of legal disputes, the records of the design process, date of creation, including sketches and related materials can be archived.
  • Continuous Use: Continuously use the original trademark to ensure that the fluid variations are recognized in the marketplace. This helps link the variations to the main brand.
  • Promote Public Awareness: Clearly communicate the connection between the original trademark and its variations. This builds consumer understanding and strengthens brand loyalty.

Points to note when building a Fluid Trademark

  • Maintain the main Brand’s Core elements

The fluid trademarks should reflect the brand’s core essence. The main component like colour, patterns, stylized writing etc should remain constant.

  • Due Diligence:

Carry out comprehensive searches to confirm that the fluid trademark does not violate any existing trademarks to avoid any infringement suit.

  • Ensure Legal Protection

Ensure your fluid trademark remains protected in its various forms. This may involve registering multiple variations of the trademark.

As change is inevitable and technology keeps advancing, consumers seek more personalized experiences that resonate with the current trend. Fluid trademarks are emerging as a powerful tool in modern brand identity, and is shaping   the future of how brands are identified. While fluid trademarks have great potential, they need to be handled wisely to keep the brand’s identity clear, avoid legal issues, and ensure customers can recognize them. As businesses use more and more fluid marks, finding the right balance between innovative ideas and staying connected to the core essence of the original brand are important.

By Srilakshmi