We are taking a look at Fluid trade marks: brilliant move or brand risk?

Trade marks are some of the most powerful and recognisable images surrounding us in both the physical and virtual worlds. The swooping lines of the Coca-Cola logo, Nike’s iconic tick, Audi’s interlocking hoops – they all communicate much more than what the eye sees, creating a brand association in the minds of consumers and assuring them of the authenticity, origin, and quality of goods and/or services bearing the mark.

Such important assets are rigorously guarded. Brand use guidelines often stretch to many pages detailing the positions, sizes, backgrounds and colours that can be used in association with the registered trade mark to ensure it retains its strength and consistency. As a case in point, Audi has an entire website dedicated to showcasing its brand and how it should be used. At the same time, legal teams stay alert to trade mark infringement by copycat companies using similar words and graphics to benefit from brand equity that they don’t own.

Brands as corporate citizens

However, the role of brands continues to evolve, and their voice and the way they interact with consumers changes. Consumers can now speak directly to brands through social media, and they expect the brand to respond. This puts more onus on brands to comment on trends and societal movements – indeed, major brands are expected to have a position that communicates company values on issues from equality, diversity and inclusion to climate change and sustainability. Whereas thirty years ago it was unusual to see a brand participating in values-led conversations, it is now expected. In some instances social commentary is directly leveraged in advertising, though not always successfully, Pepsi’s Kylie Jenner campaign being a notable case in point.

One of the ways brands have chosen to demonstrate support and engagement with social issues is through modifying their brand icons. Pride month in June sees a wave of rainbows – this year with amendments to signal support for ethnic diversity too – sweeping across well-known brands from banks and insurers to fast food companies and fashion retailers. The addition of a rainbow background doesn’t typically involve a lot of modification to the underlying mark. However, the COVID-19 pandemic saw brands going further to demonstrate their support for social distancing measures. Several companies created “socially distanced” versions of their marks to encourage their customers to adopt the recommended safety measures. Notable examples include Audi’s separate hoops and Coca-Cola’s separated letters together with the strapline: “staying apart is the best way to stay united.”

Fluid trademarks

Adapting trade marks like this – creating a “fluid trade mark” – is a creative way for brands to jump on trends and show their values. The most famous fluid mark is undoubtedly the Google Doodle, which changes daily to reflect notable anniversaries, celebrations or people. As one of the world’s largest companies, and the entry point to the web for many, Google has enough brand strength that modifying its mark in this way is low risk.

However, using modified versions of registered marks goes against the received wisdom that consistency is key when creating resonance and recognition in the mind of the consumer.  Confusion is the last thing a brand wants, as it can open the door to infringement and make it harder to defend against new similar registrations or deliberate copycats. This was recently a problem for street artist Leonard McGurr (also known as Futura). He objected to outdoor apparel company North Face’s use of a graphic device, on its ‘FUTURELIGHT’ range of clothing, claiming it infringes on his ‘Atom’ device, a stylised interpretation of an atom that he has been using for half a century. In response to the suit, North Face’s parent company held that the device fails to act as a source identifier and also that McGurr does not use the device consistently. McGurr had claimed that the device was a ‘fluid trademark’ – i.e. one with “different iterations that feature enough of a family resemblance that the target audience can recognise it in all its variation.” However, the judge, in dismissing the complaint, said that McGurr had not referenced any legal authority on a theory of fluid trade marks and that the Court was not aware of any such theory relating to a collection of similar but not identical marks. The Fashion Law has more on this case, in which McGurr has been granted the right to appeal.

Use sparingly – brand strength and defined use periods is key to the success of fluid trade marks

While adapting your trade mark can be a creative way to engage with your audience, brands should be cautious that they don’t continuously modify the mark to an extent that it is unrecognisable. This could allow competitors to petition for cancellation of the mark.

If your brand is not already well-known, regularly modifying your mark may confuse your customers and weaken brand awareness, so it is probably better to work on strengthening the initial mark and ensuring that you have strong recognition before you begin to adapt it.

Fluid trade marks should always link closely to the original mark, for example through keeping key elements such as the same colours or mark shape, and should only be used for limited time periods as part of specific campaigns. The original mark should continue to be used in tandem with the fluid mark, to retain consistency. It is quite common to see brands modifying their presence on social media channels, while maintaining the corporate brand on their official website.

As to whether fluid trade marks need to be registered; their fleeting nature means that it is likely not worthwhile going through the registration process in most cases. As always, we recommend that you consult a Chartered Trade Mark Attorney for advice on any issue relating to trade marks, including the risks and benefits of using a fluid trade mark.

Fluid trade marks are undoubtedly a fun and engaging way for brands to interact with fast-moving trends in the digital environment to create dialogue with target audiences. Used carefully and purposefully they can be a brilliant move, building relevance and creating what graphic designers have termed a “smile in the mind” that is a powerful way to connect.