FLUID TRADEMARK AND ITS CHANGING DYNAMICS
Fluid trademarks can be referred to as trademarks that changes according to a particular occasion, season, weather or apparently anything in order to increase human interaction. The variations that appear in a fluid trademark needs to have a level of similarity with the original trademark such that the customers can identify the emergence of the fluid trademark from the original trademark. It can act as a great marketing tool if used with care and caution as there are no specific laws to provide protection to fluid trademarks.
Section 15 of the Trademark Act, 1999 provides protection to a series of trademark but it can be effective only when the apprehension of the basemark can be made which is not possible in case of fluid trademark because of its dynamic nature.
Brands are frequently seen using fluid trademarks to commemorate some incident or occasion which in return would hook up the customers to draw a relation with the incident. Since the entire act includes a lot of creativity, it engrosses customers to the brand. Fluid trademarks at times can also act informative as it might also circulate a social message through a creative and witty way.
The courts put up efforts to provide protection to fluid trademarks as has been seen in the case of Proctor and Gamble Vs. Joy Creators1 in which it was held by the Hon'ble High Court of Delhi that substantial resemblance to the mark is enough to provide protection to the primary mark.
There are some points that needs to be kept in mind to prevent any case of infringement of fluid trademarks.
Firstly, the fluid trademark should maintain minimum degree of variation. The degree of variation should be limited to such extent that the customers are able to identify the base mark with the fluid trademark. It means that the source of the fluid trademark should be clearly understood by the customers. The customers should be able to picturize the base mark and the fluid trademark to have originated from the same source or associated to the same brand.
Secondly, including too many varied features to the fluid trademark might cause confusion in the minds of the customers resulting in loss of the source identity of the fluid trademark which would lead to loss in distinctiveness of the base mark and would hamper the business.
Thirdly, the creative aspects of the fluid trademark can be protected under Copyright Act as it involves a level of creativity that is attached to the base mark.
Fourthly, the fluid trademark should be commercial used and must not be abandoned. Similarly, the fluid trademark should be distinctive and should be known amongst the public.
Unlike any other non-conventional trademark, fluid trademarks don't face the problem of registration as they can be graphically represented. Owners of the trademark prefer to not registering the fluid trademark. Firstly, the entire duration of registration takes a long time. Secondly, fluid trademark are dynamic and changes from time to time. Getting registration for it might possibly cause a dilution or confusion of the original base mark.
A case for Fluid trademarks can be brought through an action of passing off. Since, the copyright Act provides explicit protection to creative works, hence fluid trademarks can also be protected under the Copyright Act.
The Google's Doodle, which commemorates some national or international festival and events. It keeps on changing and is updated from time to time depending on the occasion.
The Amul Girl which is used to promote the brand is depicted in the form of a cartoon is frequently updated to match the current social events.
In the case of Louis Vuitton Malletier Vs. Dooney Bourke2, the plaintiff claimed that the defendant had copied a stylized version of their monogram (LV initials) into their products. The plaintiff had claimed that they had used a stylized version of the multicolored monogram over a white background. The court stated a lack of confusion in the minds of the consumers and remanded the case to the lower court to determine whether it would lead to a case of likelihood of confusion or not.
USE OF FLUID TRADEMARK DURING THE TIME OF COVID 19
During Covid, it has been seen that various organizations have used their best and the most creative method as a coping mechanism. During this time, organisations have worked out ways to create awareness about the disease and how it can be prevented. This led to the evident use of fluid trademark.
The wheels in the four-wheel Audi logo which appears to be interlinked to each other were seen to be separated as four different wheels having gaps between them to highlight the importance of social distancing.
Similarly, BMW's logo was spaced in which a message was written below "Thanks for keeping distance".
The Starbucks mermaid logo was seen wearing a mask to highlight the importance of wearing mask during the time of Covid.
Trademarks are a sign of perpetual use of the mark for its wide recognition of the brand or the products sold through the mark. Under Section 15 of The Trademark Act, it has been provided that a series of trademark can be registered. The main motive behind Section 15 has been clearly explained in the Draft Manual Of Trademark that the identity of the trademark will not be affected even if the owner of the trademark is seen to be using variations of the mark which are selling the same goods and services which substantially resembles each other but materially differs in some non-distinctive character.
While this section can be used as a shield to favour fluid trademark to a large extent, yet it cannot be used as a shield against infringement in all cases. This is because, the provisions of section 15 can only be used to see the variations in the trademark that can be anticipated.
During covid, companies try to keep themselves relevant and try to gain mass appeal by using various social messages.
Section 15 of the Trademark Act does not apply to updating a trademark application to a series trademark after the registration of the trademark. Section 15 of the act however, does not take into account the dynamic nature of fluid trademark. Thus, it can be clearly stated that the concept of fluid trademark does not include series trademark.
CONCLUSION-
Fluid trademarks are a very innovative method of business to attract consumer attention if used cautiously and with care. Entities should not shy away from using it merely because it is not protected under any particular statue and the only way to bring a case is through common law.
When using a fluid trademark it should be noted that as a way of general precaution, the entity should use the fluid trademark in such a way that it maintains the level of distinctiveness that could be seen in the base mark as well as in the fluid trademark. While being creative, it should also be remembered not to deviate much from what the logo is.
Footnotes
1. Proctor and Gamble v. Joy Creators, 2011 (45) PTC 541
2. Louis Vuitton Malletier v. Dooney & Bourke, Inc., 454 F.3d 108 (2d Cir. 2006)
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
