Fluid Trademarks: Can they be protected?
A “fluid trademark” is one where the owner makes significant and continuous changes to the registered trademark, often to secure new customers or retain existing ones. By making these creative and obvious changes, the brand owner hopefully keeps internet users interested and coming back for more.
When discussing “fluid trademarks” we are not talking about periodically updating a mark, instead we mean altering a mark to the extent that it takes on a new look and feel, while still displaying the essence of the original protected trademark.
Google and Its Fluid Trademarks.
The best example—in popular culture—of a company that has done this successfully is Google. On its website, Google characteristically modifies its original trademark on different days of the year, such as Christmas, Halloween, and Thanksgiving. And in an effort to establish goodwill, Google encourages user participation in the creative process.
While creating “fluid trademarks” is a fun and creative way to keep users engaged, there is a risk of losing trademark protection for the original mark?
Potential Challenges for a Brand Owner.
Here are 3 potential challenges that the trademark owner may face when permitting their mark to become fluid:
- It will invite renditions not approved by the trademark owner.
- The public could become confused as to the source of the trademark.
- There is a risk of cancellation based on a claim of abandonment, if the original mark is not used as registered.
So if you are a brand owner looking to protect your trademarks, use your trademark in exactly the way you told the USPTO you were using it when you filed your Statement of Use. If Google gets challenged, or gets sued, it has the money to defend itself. Do you?
What are your thoughts?
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