FLUID TRADEMARK – THE LATEST TREND!

Fluid Trademark is a decade-old concept which is quite trending in this global pandemic. The most common example of a fluid trademark is Google’s doodles on its homepage. A trademark is traditionally a two-dimensional static term/design that is used to distinguish goods and services. Trademarks have developed from static signage to immersive communication tools in the modern age. Given the tough competition, it is important to come up with an eye-catching trademark that will grab the customer's attention. Fluid trademarks have become a versatile marketing tactic and an increasingly common form of branding in this sense.

This modern era development is not defined anywhere in the Indian Trademark Act, 1999 or in any international regulation or treaty.

There is no specific law governing fluid trademarks but they can be considered as a series of marks under Section 15 of Act[1] in which several trademarks are registered in respect of the same or similar goods or services– while they resemble each other in their material particulars, they can differ with about non-distinctive elements that do not substantially affect their identity.  But the section does not allow updating a trademark application to be converted into a series trademark after the registration of a single trademark therefore, Section 15 so far does not account for the dynamic nature that such trademarks possess, nevertheless the option of filing new application for series is always available.

Since fluid trademarks are non-conventional marks they involve the creation and use of a variety of different, frequently changing variations of a particular trademark, where the variations co-exist alongside the original mark.[2] These variations typically retain certain features of the underlying mark but include new design elements. Although the changes are quite subtle, they are easily distinguishable and recognized by an average consumer because of their worldwide reach, reputation, and goodwill, thereby maintaining a fresh and innovative brand identity and association among public.

However, since they are not used in their original (registered) form, they may be vulnerable to non-use cancellation proceedings. However, they would get common law protection in fluid trademarks in the same way as an unregistered trademark and a passing -off action could be maintained against the use of a similar variant.

The Copyright in artistic elements in the new variant of the trademark can also be helpful in their protection.

DRAWBACKS!!

Using of fluid trademarks although can be risky, due to variant changes there are high chances of the original trademark losing its true identity. A fluid mark can confuse the consumers compared to the original trademark of the brand. There is also high risk of diluting of the primary trademark in case of excessive and random usage of variations. This is the main reason why only a well-established and known trademark tends to take the risk of adopting fluid marks.

Additionally, these marks are short lived therefore, contradicts the principle of building a strong goodwill via, trademark which signifies the source through consistent use over time. They have no secured protection apart from common remedy of passing off as the proper legal protection is only available to the primary mark which is registered as per the provisions.

Indian courts are yet to witness a case of infringement of a Fluid Trademark, and the jurisprudence in respect thereof is yet to evolve.  The risk involved in changing nature of fluid marks can only be taken by a well known brand. Therefore, the focus of new brands should generally be on garnering protection and goodwill on the primary trademark so that in future fluid variants based so on them can easily be identified and protected.

 

*Images used for representation purpose only, No copyright is claimed on the images used in the article

 

 

 

[1] Section 15 of Trade Marks Act,1999

[2]Shailesh Kumar Singh, Trademark in Digital Era: Issues in Protection of Fluid Marks Analysis,2018 IJLMH Volume 1, Issue 5, ISSN: 2581-5369