One of the most interesting trends in trademark use over the past few years has been the way brands have increasingly played with their logos, creating different versions in order to keep up their appeal to consumers—particularly online. It’s especially interesting because few of these so-called fluid marks have been tested in court, so the way in which different versions undermine the mark’s functions is not yet clear. A session on fluid marks today will try to set out some best practices for brand owners, in the face of this uncertainty.
All such discussions start with GOOGLE. As the stream of GOOGLE logos across the bottom of this page illustrates, the company changes its logo regularly to reflect anniversaries and world events. The designs range from the simple addition of a snowball to an unreadable scribble mimicking artist Jackson Pollock. They are all collected at google.com/doodles.
It is—in the words of one of today’s speakers, Lisa Pearson of Kilpatrick Townsend & Stockton—the quintessential information-age brand. It is the antithesis of the traditional view of the trademark: a signature of the owner that is stronger the more often it is used in the same form to identify the same source.
The GOOGLE mark is actually stronger for being so distorted and adapted. Internet users find themselves searching out the GOOGLE letters within the pictures that celebrate the birthdays of Colombian writer Jorge Isaacs or Czech inventor Prokop Diviš. It is a game that engages the consumer in a way a traditional mark never would.
Another good example is ABSOLUT vodka, which has used the shape of its bottle as the basis for various artistic collaborations. The result—as shown opposite—is a series of interpretations by others of the ABSOLUT trade mark. The campaign specifically engages others by inviting them to distort the logo. It is the outsourcing of a fluid mark. Google actively solicits suggestions for its doodles as well, as do other brands such as the British TV station E4.
At the other end of the scale, an increasing number of dynamic institutions are making use of fluid marks. The City of Melbourne, for instance, uses a range of different patterns within its M logo to demonstrate its cultural and creative diversity. And New York’s Museum of Arts and Design does something similar, with different materials making up its MAD logo.
Fluid marks are not for everyone
But it is striking that these examples all come from one of two types of brand owner: ones with very well-known marks and ones with relatively unknown marks.
The former have such strong brand recognition that they are not afraid of losing recognition from consumers, or from losing their trademark rights in particularly distorted designs. The latter, on the other hand, are often not commercial organizations or are so small that they have little to fear from weaker trademark rights. A good example is Nordkyn, a peninsula on the top of Norway that created a dynamic logo for itself which changes shape with the prevailing weather. It is arguably a weak mark; but then counterfeiting is hardly a prime concern.
So should brand owners that don’t fall into one of these categories avoid using fluid marks? “Yes, the best candidates for fluid marks are always going to be conceptually or commercially strong marks,” says Pearson. “Brand owners run big risks using weak marks as fluid mark templates. For example, if a word mark is in danger of becoming a generic term, presenting it in a lot of different permutations could not only hasten its demise but also potentially hinder the development of trademark rights in other source identifiers such as a distinctive logo or trade dress.”
The key is retaining the main identifying points of the mark, such as the typography or device elements. In most versions of the GOOGLE logo, for example, the letters are retained in some form. Other brand owners shouldn’t mimic the versions where the logo is entirely obscured, such as the Pollock version.
Other fluid marks retain these core pillars—NICKELODEON, for example, recently switched from its well-known orange ‘splat’ logo to the same text over a range of different orange shapes. AOL, equally, has used a logo for a while that is a cut out of some other image, with the AOL letters being created by the negative space. In fact, Pearson points out that AOL has been slightly better in this regard than Nickelodeon, as the latter has used slightly different typographies over time, where AOL has been consistent.
Should you register a fluid mark?
One reason that it’s important to retain these core elements, of course, it links the versions of the mark to the registered trademark. Most companies also continue to use their registered mark, even if it’s in less public spaces. Anyone using Gmail or with a personalized GOOGLE homepage—which happens automatically for Internet users with any form of Google account cached on that computer—will see the unadulterated GOOGLE mark more often than the doodles.
Google hasn’t registered any of its doodles. Given their short life, registration is likely to be neither practical nor economical. However, fluid marks can become more permanent fixtures in a company’s branding, in which case it is worth registering them. The different versions of LOUIS VUITTON’s monogram, for example, have gone on to be used on a range of products and therefore protected. One of the few cases involving fluid marks saw Vuitton sue Dooney & Burke, an American handbag company, for a design that resembled a rainbow-colored version of the monogram.
Other fluid marks have been used so consistently that they might justify registration in some form. Saks Fifth Avenue, for example, has been using a scrambled version of its logo on its shopping bags for years. Design company Pentagram streamlined the typography of Saks’ classic script logo, cut it up into 64 tiles, and reshuffled them to transform what was essentially a signature into a new graphic image.
One part of a bigger trend
The recommendations that Pearson and her fellow speakers will have this afternoon are similar in many ways to those usually given for working with social media. Trademark lawyers that work frequently with social media usually tell brand owners not to be too precious about their mark, to encourage customers to engage with it and to be prepared for some derogatory use.
“The level of flexibility you see with fluid marks is part of the broader trend towards interactivity and involvement with the customer—you see that across social media platforms today,” says Martha Kimes of GoDaddy.com, who will also be speaking on today’s panel.
She gives the example of Human Rights Campaign, which encouraged its supporters to use its red equals sign in a multitude of different ways during recent cases at the Supreme Court. As well as a huge response around social media, companies such as Budweiser created versions—in their case using two Bud Light cans lying on their side. And in a nice link back to other fluid marks, Absolut vodka created a version with the caption “Absolut support”.
Has GoDaddy considered being more creative with its mark? “We’ve had conversations about it, but I don’t think our brand is recognisable enough for it to work,” says Kimes. “We’re building it up though, so maybe in a few years.”
Is it anything more than a trend?
One of the other speakers on today’s panel, Flip Petillon from Crowell & Moring in Brussels, is a little bit more sceptical about fluid marks. “This kind of use of trademarks has been going on for quite a long time. In Europe the most obvious example is Channel 4’s idents, which started back in 2004,” he says. “In Europe there is no specific case law, but it’s not really needed—the issues are the same as for any trademark, it’s just that the use is slightly different.”
There are a few differences in the law between the US and EU, however, which affect the protection of these marks. The biggest risk in using a fluid mark is probably that the original, registered mark could be canceled for non-use—unless it is still used regularly, as with Google. In the EU, a trademark owner has five years after registration to begin using the mark; in the US, use has to be shown upon registration, so a mark that is not used in its original form could be revoked much more quickly.
Whether fluid marks represent a new area of trademark practice, or merely one particularly dynamic form of branding, INTA attendees are likely to come across them more and more in years to come.
CM23 Fluid Marks: Consistency Is Key—or Is It? takes place today from 11:45 am to 1:00 pm in Ballroom D3-4
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