Most of us use Google almost every day and intentionally or unintentionally, we look forward to seeing what the Google Doodle of the day would be! Well, that is the kind of impact that the constantly changing “Google” logo has created on the minds of its users. I personally am very fascinated with the Google Doodles and that got me wondering about the pros and cons of constantly changing the trademark.

“Fluid trademarks” are what they are called today and as the name suggests, the variations of the registered (in most cases) trademark, which coexist with the underlying mark, and are so made in a bid to build/improve consumer interest and strengthen brand loyalty.

Why have a fluid trademarks?

Basically to keep up with the rapidly evolving world and information technology, in particular. As per the traditional trademark principles, a trademark is meant to be conventional and static and have unchanging words or logos with which the consumers develop a familiarity over a period of time. Having said that, in this era where there is tough competition everywhere we go, it is quite important to be unique and different and one way of doing that would be to come up with an eye-catching, attractive and a fresh looking trademark which should have a strong effect on the user’s minds. The trend that companies are adopting these days is to implement fluid trademarks as a business strategy to not only uplift the brand but also to stay relevant. Here is what I mean by fluid trademarks :

Risks of using fluid trademarks

It is a known fact that non-use of trademarks (3 years is US, 5 years in Europe and India etc.) will result in loss of trademark rights despite holding a registration in that particular jurisdiction. Unlike domain names, one is not allowed to hold trademark registrations just as a defence but has to actually use it. So this makes it absolutely important for the trademark holder to retain essential and underlying features of the trademark and make sure that the original mark does not lie dormant for a long period of time.

Another downside is that sometimes people get carried away with the whole concept of fluid trademarks and try such variations that ultimately cause confusion in the minds of its loyal users as to whether it is the original brand or merely a knock-off. This happened to me recently when I saw a Frooti juice can (a mango flavoured drink sold in India) and told my colleague “hey, that’s not original“; but on checking the manufacturer, it turned out to be original. So one thing that has to be kept in mind is to not deviate from the original mark so much so that the consumers start questioning the authenticity of the brand. Another risk is that such variations will inspire imitations and parodies which I think is inevitable.

Infringement claim?

What happens when someone else uses the same variant of your trademark? Can the trademark holder file a suit for infringement? Unless you have a trademark registration for the variant as well, filing a suit for infringement might not be possible. However, in common law countries such as India, the trademark holder can definitely file a suit for passing off as protection granted under registration only extends to the underlying mark.

Fluid trademarks:Protection under copyright law

The fluid trademarks can be protected under the copyright law and this might help to ward off the third party imitations and parodies and will also keep the competitors away from using the variations for purposes of comparisons.

All you need to know when using fluid trademarks are the following:

  • The essential characteristics of the original mark should be retained;
  • It makes sense for big names like Google to experiment with its logo; however, a not so popular brand should first work on building its current brand and not try to experiment too much at the initial stages itself;
  • Variations of a word mark might lead to confusion (unless it’s a brand as popular as Perrier that comes up with variations like crazier, flirtier etc. which is written in the same font as the original mark);
  • Whatever said and done, I think it is a great way to stay connected with the consumers who will eagerly await the next variation; just like how I am making a mental list right now of all the occasions and holidays coming up this year to check the Google Doodles!

This article has been authored by Durga Bhatt, an IP Law practitioner.