Author: Devesh Tripathi
Designation: Student, Maharashtra National Law University
Email ID: email@example.com
Due to arrival of Covid-19, everyone around us are adopting new ways to cope up with this pandemic. The popular brands are no way behind in adopting new measures to connect with their consumers. Recently we have seen that some of the world’s big brands have tweaked some changes in their trademark. For instance, the interconnected rings of Audi was separated, Starbucks mermaid was seen wearing mask. It raises questions in the mind of IP enthusiasts whether the trademarks can be changed or ornamentations can be made in existing Trademark ?
Changes and ornamentation in a trademark possible and is known as fluid mark. In fluid marks artistic additions and creativity is used along the original Trademark. The fluid mark is not very dissimilar to the original Trademark, they can be perceived by the consumers as the variation in the existing trademark. This ornamentation of the trademark is also a marketing strategy which is done with the intent of connecting the brand with people.
Fluid mark as a marketing tool
Traditionally a trademark is a fixed symbol or design that is used for the identification of goods and services. With the emergence of digital era, trademarks also evolved from static designs to an interactive marketing tool. In order to capture the attention of consumers it is important to come up with something interactive and eye catchy techniques. In today’s ever-changing world fluid trademarks have become a popular tool of branding and marketing.
Protection of fluid Trademark
Under Indian Trademark Act,1999 there is no provision for the protection of fluid marks. Fluid marks have not been defined anywhere in the Act. Protection with respect to fluid marks have not been granted in some international treaty as well. Section 15 of Indian Trademark Act lays down provisions for the registration series of Trademarks. So if one wants to register a series of marks he has anticipate the marks beforehand and it goes against the dynamic concept of the fluid marks. The protection granted under section 15 of the Act can be used only if all the variants that will be used in representing a trademark is anticipated beforehand. Section 15 nowhere talks about the dynamics and changing nature of the mark thus it can be held that this section lacks in granting protection to the ever-changing nature of fluid marks.
Passing off suits can be brought in the case of fluid marks. In the case of Proctor and Gamble v. Joy Creators, the Delhi high court held that it is not necessary for a mark to be exact replica of the registered mark in order to constitute infringement. If the plaintiff succeeds in showing that the mark of defendant has substantial characteristics that resembles as the trademark of plaintiff then it is sufficient to prove infringement. The fluid marks can also be protected under the copyright Act as it is an artistic creation. The copyright protection of fluid mark may help to avoid the imitations from the third party.
Characteristics of fluid marks
Fluid marks can be considered as ornamentation on the registered trademarks. There should not be many differences between the fluid mark and the registered trademark. The essential features of the registered trademark should be retained.
Fluid mark is a privilege that is only available for well known marks. Even if Mercedes does some experience with its Trademark it will be traced as it is a well known mark.
Brands which has not made an impression in the mind of people should refrain from using fluid marks as there will be possibilities of confusion.
Fluid marks are also seen as the medium of communication between brands and it’s consumers.
Cons of fluid marks
The fluid marks also have some cons attached to it. Many times fluid marks can create confusion among the consumers. The fluid marks are seen as a mode of communication between brands and its consumers. There is huge scope of confusion in this mode of communication.
Non use of the registered trademark results in its cancellation if abandonment of Trademark is proved. If the Trademark holder uses new variations in such a way, that he fails to use the underlying mark then it is deemed that mark has been abandoned.
In India there is no provision for the protection of fluid marks and if there is no protection then suit of infringement cannot be brought upon.
Fluid mark is loosely considered as a variant of trademark that is not static. It is a moreover a marketing tool that is used for the purpose of brand rejuvenation. Fluid mark is used to popularise the brand and to create a connection with the consumers. Fluid marks should be used wisely as there is no law for the protection of the same and no infringement action can be brought if the fluid mark is illegally used by any third party. Fluid marks can be protected by the way of copyright and Passing off Action can be brought in case of unauthorised imitation.