Over the past few years, the term ‘fluid trade marks’ has been appearing more and more in relation to business on the internet and in the commercial space generally. Assumptions have been made as to what ‘fluid’ means and the implications associated with this type of trade mark.
In a nutshell, as the name suggests, fluid trade marks are marks that change over time. In this regard, fluid marks can be seen as contradictory to trade mark principles which historically have relied on fixed words and images that consumers can easily identify and relate to.
However, with the evolution of the digital era and with it, the public’s perception of trade marks, businesses have looked to make their trade marks ‘shinier’ to capture and keep the public’s attention. Fluid trade marks are by essence interactive and flashy and these qualities assist in the creation of a lasting relationship between consumers and brands.
To better understand the concept of these changing trade marks, we should have a look at real life examples of successful fluid marks.
One of the best known examples of a successful fluid trade mark is the Google® ‘Doodle’. The ‘Doodle’ is a variant of the Google® logo (underlying trade mark) which appears on Google®’s home page.
For example, during a particular holiday, event or special anniversary, Google® uses a variant of its trade mark that incorporates images associated with that particular event.
This particular ‘Doodle’ was released on 17 July 2017 to celebrate the IICC Women’s Cricket World Cup.
Another ‘Doodle’ was released 16 September 2014 to indicate the celebration of the Mexican Independence Day.
These fluid trade marks have become extremely successful – so much so that Google® has created a dedicated ‘Doodle’ web-page where visitors can look at a collection of every single Doodle that Google® has ever issued.[1]
Another great example is from Absolut® Vodka.
Absolut® adopted a marketing campaign that invited artists to re-design and re-invent the now famous and immediately recognisable vodka bottle.
Source: http://www.graphicart-news.com/all-creativity-starts-with-an-absolut-blank/#.VCjtEGccTs0
Further, Absolut® frequently runs diverse advertisements that show variations of the product’s slogan:
Source: http://fooyoh.com/menknowpause_lifestyle_living/1255576
This brand is ever-changing and evolving, making it interesting and exciting for consumers. Absolut® has been re-inventing its product for years and has done so very successfully. The underlying sign is still clear to consumers: Notwithstanding the slogan or graphic representation, the Absolut® Vodka bottle is readily recognisable.
The City of Melbourne is represented by a very clever fluid trade mark made up of an edgy representation of the letter ‘M’. This trade mark changes in colour and print very often – showing the brand’s (and the City’s) many facets:
Source: https://www.behance.net/gallery/276451/City-of-Melbourne
‘At the heart of the new design, the bold “M” presents a full expression of the identity system – immediately recognizable and as multifaceted as the city itself: creative, cultural, sustainable. A celebration of diversity and personal interpretation that is both future-proof and iconic.’[2]
This type of fluid trade mark was created precisely to reflect inherent qualities found in the City of Melbourne, making the changes in the ‘M’ – which is the underlying sign, an integral part of the brand without which the message delivered by the trade mark would not be the same.
One of the most important challenges that arise from the use of fluid trade marks is that because the trade marks are not being used in its ‘original’ (registered) form, they may be vulnerable to non-use cancellation proceedings.
In Australia, if a trade mark has been registered for five years, use of the mark needs to have been effected in the three years prior for the relevant goods and services; otherwise, the mark could be cancelled due to non-use. Other jurisdictions like the United States and Europe have similar provisions.
Another challenge that emanates from the use of fluid trade marks is that because they are ever changing and creative by nature, it opens up the possibility of having members of the public or third parties creating their own ‘renditions’ of the trade mark. This could be hard to monitor and stop.
Finally, given that fluid trade marks evolve constantly, the public could become confused as to the origin or source of the trade mark.
These challenges can be minimised if certain actions and precautions are taken and considered:
Fluid trade marks are great tools that allow brand owners to engage and interact with the public in an age where almost everything is digital. They further allow brand owners to establish long lasting emotional connections between the public and the brand itself. However, fluid trade marks do pose legal risks that need to be considered before a brand owner decides to adopt an ever changing trade mark. The use of a fluid mark is riskier than that of any other ‘more traditional’ trade mark.
[1] https://www.google.com/doodles/
[2] https://www.behance.net/gallery/276451/City-of-Melbourne as at 26 September 2014.