Fluid Marks and Their Protection Under Indian Trademark Law
Typically, a trademark is conceived to be a static, two-dimensional term or a design, which is used to uniquely identify certain goods or services. However, with the evolution of the digital era, companies strive to make their trademark striking and memorable. This is where fluid trademarks step in. As the name suggests, fluid trademarks, while maintaining a source identifying feature, constantly keep changing. They involve using and constantly creating new variations of the same basic trademark. These variations coexist along with the original mark by retaining the basic mark and bringing in new design elements. They reflect a new, modern approach to branding that has found great success in the Internet age.
There can be many variations to a fluid mark, some of them may involve just ornamenting the static underlying mark. This way the essential characters of the mark remain constant even when new matter has been added to the mark. This approach is famously used by Google in its famous GOOGLE DOODLES, which retains most of its original word mark and logo, and the changes are brought by merely adding ornamentation to it. For instance, Google (India) commemorates the Indian Independence Day by ornamenting the basic GOOGLE mark with tri-colors of Indian National Flag. Another popular method to implement a fluid brand identity is to utilize the frame of the original mark or its three-dimensional character to fill it with different content. MTV adopted this method by using 3-D image of its basic MTV (Design) mark and filling it with popular content that is broadcast on the channel. Some fluid marks reinterpret the mark in different media. For instance, ABSOLUT vodka started a campaign where they invited various artists to depict the iconic shape of their vodka bottle, recast creatively in a variety of materials.
The traditional view is that trademark rights are perpetual in nature. For example, use of a consistent color scheme will strengthen the rights of an owner over a period of time. Proponents of this theory advocate that experimenting with marks unless they have acquired a certain level of recognition with the target audience may dilute the mark or destroy its value. Representation of a particular trademark in various forms, may only be useful when the mark is well-known in the trade and to the public at large. Else, the very purpose of creating such variations could stand defeated. Further, non-use of a mark in the form and the manner in which it is registered could even make it vulnerable to cancellation.
Fluid marks are a fairly recent development in the Indian market and have not yet been tested in courts. It would not be an easy task for right holders to challenge third-party infringements, when the mark is subject to continuous alterations and no consistent use of variants of the mark has been established. However, India provides common law protection to fluid marks. In Proctor and Gamble v. Joy Creators, the Delhi High Court ruled that it is not necessary that a mark should be an exact replica of the registered trademark to constitute infringement. As per the court, “It will be sufficient if the plaintiff is able to 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.”
In India, fluid marks may even be protected as series marks. This would allow the proprietor to register a series of marks in respect of goods and services of interest. For instance, Perrier’s change of the word mark on its bottles from PERRIER to ‘SEXIER’ ‘CRAZIER’ ‘SASSIER’ etc., could even be protected as series marks.
Trademarks, if presented in the same manner consistently over the years, may lose their appeal and become redundant to the public. In this digital era, fluid marks have become great tools for companies to engage with their customers and create long lasting impressions on the target audience. As companies strive to keep their brands relevant in the market and make efforts to humanize their brands by rejecting static brand identifiers, they must also consider the legal risks that are associated with such options. If used tactically, fluid marks would not only enhance brand appeal but also help build a better trademark portfolio.