What is real
is not external form.



CONSTANTIN BRANCUSI

Fluid Trademarks – an abstraction from regulations

15.07.2020


Fluid trademarks describe a new way of approaching branding: changing brands over time in a way that contradicts the traditional paradigm. It has been argued that brands should be characterized by a static appearance that does not see a change in the words and symbols used by the brand. This is because potential consumers may get used to the visual identity of the brand over time.

Fluid trademarks add a dose of creativity to the image of a certain brand. Unlike traditional brands, fluid trademarks create attention towards the brand in a way that is dynamic and authentically connects the brand with potential consumers.

Google’s use of fluid trademarks

An example of fluid trademarks can be seen employed by Google, which has managed to create a number of iconic fluid brands over time. For example, Google has used its Google Doodles to associate its brand name with certain holidays or events, using images of such holidays and events to create Doodles that include Google’s trademark logo.

Is it possible to protect these types of brands?

It is difficult to outline the extent to which fluid trademarks fall under the protection of current trademark law. This is because there is no good way to describe fluid trademarks effectively and correctly in a trademark application. The registration of fluid trademarks is not covered in the Trademark Manual of Examining Procedure. All this is to say that there is no fixed way of obtaining coverage for a trademark registration of several variants that begin from the form of the base trademark, yet this procedure would be necessary to obtain a fluid trademark registration.

In order to capture the essence of a fluid trademark, each version of the trademark should be described in detail in the trademark application. This can be done by drawing an image that highlights the variations that will be used, using dotted lines or any other notation to indicate the possible changes that can be done to the base trademark.

Although fluid trademarks are not clearly protected, copyright and patent principles can be pursued to obtain IP protection of the trademark. Copyright allows the fluid trademark to be protected as long as it is set in a tangible medium of expression. Copyright will also be able to cover any drawings that take the form of the fluid trademark, and so is an alternative to trademark protection.

Fluid trademarks are only now becoming hotly debated, and the law surrounding the topic differs between countries. This difference is because of the additional protection that is achieved through the protection methods explained above, together with the registration of the base trademark against IP infringement, as well as the need to create a solid branding strategy that minimizes the risk of potential consumers confusing the base trademark with the fluid one.

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