From Static Symbols to Fluid Brand Identities
Introduction
The nature of trade marks suggests that they are supposed to remain static over a period of time. However, we can trace the change in trend caused due to the evolution in trade marks over a span of time.
The Reason Behind This Evolutionary Development
Brand and companies have made it a trend to evolve from time to time creating variants over their original/ main or core mark. The reasons behind can be traced through the following:
Trade mark owners find it to be a way to interact with their customers and try to deepen the allegiance with their consumers through association and a sense of belonging. Through sharing their agenda and beliefs the trade mark holders try to connect to their users and have found this to be a successful way to strengthen their reputation and goodwill in the market.
[Image Sources : Shutter stock]
On a superficial note, the fluid trade marks keep the consumers engaged and provide a whole new look to their trademark to stay relevant with time and advancement.
It strengthens brand awareness, builds a better rapport, and a more intimate Business-to-consumer relation which builds trust and faith in their product.
It can act as a mark of social awareness, support to minorities, or an agenda and can also help in strengthening a social cause or a movement.
We can see various examples around us in our day-to-day life in brands like Google and Amul and can also see them being used by high-end brands as well.
Google is very famous for using fluid marks and we can witness them changing almost every day- they are known as ‘Google doodle’.
The Amul Girl which is used to promote the brand is depicted in the form of a cartoon and is frequently updated to match the current social events. Amul Girl herself is a well-known mark that has been associated in several different contexts with added slogans, at times to make Amul’s advertisement catchier and engaging to its consumers.
During the Covid times, we have seen several brands adopting fluid logos for a social cause. Some examples are laid down below:
The four wheels of the Audi logo which appears to be interlinked to each other were separated as four different wheels having gaps between each other to promote social distancing during the difficult times of COVID-19. We can see how they have managed to utilise their mark to propagate an important propaganda in times of need. Similarly, BMW’s logo was spacedto promote the need and importance of social distancing with a message written below “Thanks for keeping distance”.
Starbucks also updated its mermaid logo and it was seen wearing a mask to highlight the importance of wearing mask during the time of Covid.
Protection Of Fluid Trade Marks
The generic procedure to get a mark registered is under Chapter 3 under Sections 18 to 26 of the Trade marks Act 1999.
However, it is difficult to protect these temporary marks, if one gets their main mark or core mark or the original mark protected or gains reputation through continuous use, such marks can protect other variations of their mark. However, ideally one should protect every variant of their mark but considering the lengthy procedure to get each and every one of them registered separately, one would simply choose to get their main mark protected and simply make amendments to the others.
In India, it can be protected as a series mark as has been mentioned under Section 15 of the Trade marks Act 1999 as well as an ‘artistic work’ under the Copyrights Act 1957. The main motive behind this provision has been explained in the Draft Manual of Trade mark – to not affect the identity of the trade markeven if variations of the trade mark are seen to be used by the owner for selling the same goods and services substantially resembling the original mark but differing materially in some non-distinctive manner.
Some Important Case Laws
In Proctor and Gamble v. Joy Creators[1], The Delhi High Court ruled that “It will be sufficient if the plaintiff can show that the trademark adopted by the Defendant resembles its trademark in a substantial degree, on account of extensive use of the main features found in [a] trademark.” Thus, this elucidates upon the fact that, even if a mark is not registered, one can avail of common law protection under Section 27(2) by proving similarity of a substantial degree.
The courts in the case of Rintisch v. Eder[2] the ECJ expanded on the argument and laid down a principlethat “a rights holder was not precluded from relying on use in a different form from that in which the trademark had been registered, provided that the differences between the two forms did not alter the distinctive character of the mark.”
The degree of similarity to be considered in an infringement of a fluid mark can be understood through the case of Louis Vuitton Malletier Vs. Dooney Bourke[3], where the plaintiff alleged that the defendant had imitated/copied their stylized monogram (the LV initials) on their products.
Dooney & Bourke unveiled their ‘It Bag’ collection, showcasing a multicolored ‘DB’ monogram against a white backdrop, reminiscent of Louis Vuitton (LV).
When assessing the potential for confusion, the court emphasized evaluating the similarity between the marks within the marketplace context rather than through a direct side-by-side comparison. Consequently, the court returned the case to the lower court to ascertain whether there was a likelihood of confusion between the two marks.
Author: Soumi Lahiri, A Student at University of Petroleum and Energy Studies, in case of any queries please contact/write back to us at support@ipandlegalfilings.com or IP & Legal Filing
[1]Proctor and Gamble v. Joy Creators, 2011 (45) PTC 541.
[2]Rintisch v. Eder (C-553/11).
[3]Louis Vuitton Malletier v. Dooney & Bourke, Inc., 454 F.3d 108 (2d Cir. 2006).
