Understanding Trademarks under Intellectual Property

Published On: 13th January, 2025

Authored by: Charvi Batra
Amity University Gurugram

A trademark is a distinctive sign or symbol that distinguishes the goods or services of one entity from those of others. It can include words, logos, symbols, or even sounds that create a recognizable identity for a brand in the market. In the realm of intellectual property, trademarks provide legal protection for brands, ensuring that they cannot be copied or misused by others without permission. By securing a trademark, businesses protect their reputation and their trust with consumers.

Types of Trademarks: Conventional and Non-Conventional

Conventional Trademarks:

These are the more traditional types of trademarks, often associated with brand names, logos, symbols, or slogans. Examples include:

– Word Marks: Like the name “Coca-Cola”.

– Logos: The Nike “Swoosh” or Apple’s Bitten Apple.

– Taglines: McDonald’s “I’m Lovin’ It”.

Non-Conventional Trademarks:

These include newer, more creative forms of trademarks that go beyond words or logos. Non-conventional trademarks can be:

– Color Marks: Cadbury’s purple for chocolate packaging.

– Sound Marks: The roar of the MGM lion before a movie.

– Shape Marks: The unique shape of a Coca-Cola bottle.

– Scent Marks: These are rarely used but are possible to register if they are distinctive.

These non-conventional marks play a critical role in creating unique brand experiences, often appealing to senses other than sight.

Fluid Trademarks: A Dynamic Approach

Fluid trademarks represent a shift in how brands maintain their identity in a dynamic and digital world. Unlike traditional trademarks that remain static, fluid trademarks change over time, adapting to different themes, events, or social contexts. Yet, they retain a core element that ensures consumers can still recognize the brand. For example, Google frequently alters its homepage logo (the “Google Doodle”) to celebrate holidays, important events, or cultural milestones while keeping the core identity intact.

Fluid trademarks leverage the flexibility of modern branding, allowing companies to stay relevant and engage more effectively with their audience. This adaptability helps brands remain memorable in a constantly changing cultural landscape, particularly in digital and social media environments.

Evolution of Fluid Trademarks in India

In India, the concept of fluid trademarks is relatively new, but it has gained traction over the past decade, especially with the rise of social media and digital marketing. As Indian businesses and global brands operating in the country adapted to the digital era, they sought ways to maintain brand relevance and engagement through evolving brand elements. Fluid trademarks offered a way to do this without losing the brand’s core recognition.

For example, brands like Zomato and Amul in India have used fluid trademark strategies effectively. Zomato often changes its app icon or logo on its digital platforms to reflect popular cultural trends, festivals, or social issues, allowing it to connect better with its audience. Amul’s topical ads, while not strictly fluid trademarks, exemplify the idea of staying relevant by consistently changing messages while retaining brand recognition through the Amul Girl and the signature design style.

The evolution of fluid trademarks in India has mirrored global trends but has also adapted to local cultural nuances. For instance, adapting logos or marketing material for major festivals like Diwali or Independence Day allows brands to resonate with Indian audiences.

The shift towards fluid trademarks highlights a broader transformation in branding, where the traditional rules of rigid consistency have given way to a more flexible, audience-centric approach. This evolution has been further accelerated by the rise of social media, where engagement is crucial, and relevance can change quickly.

Fluid trademarks allow brands to maintain a fresh and engaging presence without losing their core identity. While not explicitly mentioned in the traditional trademark laws, fluid trademarks operate within the framework of intellectual property by keeping a recognizable brand element at their core, ensuring that consumers can identify the brand even as it evolves.

Registration of Fluid Trademarks in India

In India, the registration of fluid trademarks is not explicitly outlined in the Trademarks Act, 1999. However, businesses can protect fluid trademarks by registering the original static version of their mark, which serves as the core or foundation of their brand identity. For example, Google could register its main logo and then create temporary variations for special occasions.

Fluid Trademarks During COVID-19 in India

The COVID-19 pandemic significantly altered the way brands communicate with their audiences, and fluid trademarks became an important tool for businesses to stay relevant during the crisis.

– Adaptation to Crisis: Many brands used fluid trademarks to promote public health messages or express solidarity with frontline workers. For instance, brands like McDonald’s altered their logos to encourage social distancing by spreading out the iconic golden arches. In India, Zomato adapted its logo and messages to support the “Stay Home, Stay Safe” initiatives during lockdowns.

– Connection with Consumers: During the pandemic, consumers sought reassurance and empathy from the brands they engaged with. Fluid trademarks allowed companies to shift their tone quickly, displaying messages of hope, safety, and solidarity, thus maintaining a human connection during a period of uncertainty.

– Digital-First Approach: As interactions moved online due to lockdowns, brands adapted their digital presence to match the moment, using fluid trademarks to create a sense of community and shared experience.

Examples of Fluid Trademarks

1. Google Doodles: One of the most prominent examples, Google alters its homepage logo to celebrate cultural events, holidays, or notable individuals. The Doodles keep the core elements of the brand recognizable while adapting to different themes.

 2. Zomato App Icon Changes: In India, Zomato has frequently adapted its app icon to reflect cultural events, local festivals, and social themes. For example, during the IPL cricket season, it might change the icon to a cricket-themed design, maintaining user engagement.

Taxonomy of Fluid Trademarks

Fluid trademarks can be categorized based on the types of changes they undergo:

  1. Event-Based Adaptations: Variations are made to mark special occasions, like Google’s logo changes for national holidays or sports events.
  2. Seasonal Changes: Some brands adjust their marks for particular seasons, like incorporating winter themes during the holiday season.
  3. Social Messaging: These adaptations respond to social or cultural issues, such as changes promoting social distancing during the COVID-19 pandemic.
  4. Cultural Relevance: Brands may adapt their trademarks to align with cultural festivals or events, like Diwali or Holi in India.

Why Use Fluid Trademarks?

Fluid trademarks have become a popular strategy for several reasons:

– Enhanced Engagement: By evolving with the times, fluid trademarks can maintain audience interest and increase brand engagement. A logo that changes to reflect current events feels fresh and relevant.

– Brand Loyalty: By connecting with consumers on social and cultural levels, brands can build deeper emotional bonds, fostering loyalty.

– Adaptability: Fluid trademarks allow brands to adapt quickly to shifting cultural and social contexts without losing their core identity.

Challenges of Fluid Trademarks

– Legal Protection: The primary challenge lies in securing legal protection. Traditional trademark law focuses on static marks, making it difficult to protect the changing elements of a fluid trademark.

– Brand Consistency: A delicate balance is needed to ensure that the variations do not dilute the brand’s core identity. If a brand changes too much, it risks losing recognizability.

– Risk of Confusion: Frequent changes can confuse consumers, particularly if the variations are not well-thought-out. This can undermine the brand’s goal of creating a strong and consistent identity.

Fluid Trademarks and Their Place in Indian Trademark Law

The Trademarks Act, 1999 in India does not specifically address fluid trademarks. However, the existing provisions can be adapted to offer a degree of protection:

– Section 9 of the Act prohibits registration of marks that are not distinctive, but since fluid trademarks build on an already established core identity, they often overcome this hurdle.

– Section 17 protects a composite mark in its entirety, allowing brands to claim protection over the primary elements even as they adapt the look and feel of their trademarks.

In practice, brands use these provisions to secure their base identity, while relying on marketing strategies and goodwill to protect the fluid variations. The fluidity aspect remains more a matter of business strategy than legal principle in India.

Louis Vuitton Malletier vs. Dooney Burke

In this case, the plaintiff contended that their stylized version of the Toile Monogram had been copied by the defendants on their products as depicted below- 

It was held that Louis Vuitton’s mark is inherently distinctive and that it had acquired secondary meaning, and was therefore eligible for protection. The court also pointed out that while Fluid Trademarks may give substantial freedom and scope to be creative around Trademarks, the right of monopolizing certain non-distinctive features may not always be proven under law. The question of likelihood leading to confusion needs a stringent discharge of proof.

Conclusion

Fluid trademarks represent a shift towards dynamic branding, allowing businesses to remain relevant and engaging in a fast-changing world. They reflect the adaptability that is crucial in modern branding, especially in the digital age and during challenging times like the COVID-19 pandemic. However, the challenges of legal protection and brand consistency make it essential for companies to approach fluid trademarks thoughtfully. By anchoring their variations to a legally registered core mark and carefully managing changes, brands in India can use fluid trademarks to build stronger connections with their audiences while navigating the limitations of traditional trademark law

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