A “fluid trademark” is a registered trademark, presumably registered under federal trademark law, that the mark’s owner significantly and continuously changes. The most often sited example of a fluid trademark is Google’s name as displayed on its website and search box pages, which mark is changed on a regular basis and especially on holidays. The purpose of a fluid trademark is to draw attention to the mark from new customers, to increase general brand awareness and to keep the interest of existing customers.
A fluid trademark is not a mark that is occasionally updated to freshen the brand or make it look more contemporary. Those types of changes give a mark a new and fresh look while retaining the essence of the registered mark.
Including a “fluid trademark” in your company’s marketing can be a fun and creative way to engage customers, create buzz and attract new viewers, especially if you allow your customers to engage in the process of developing the changes to your mark to make it a fluid trademark. However, there are some serious risks to your trademark rights once you start making changes and if you make changes regularly-
- A fluid trademark, particularly if customers are involved in the process, encourages variations of your mark that are not authorized by you and possibly beyond your knowledge or control. In other words, in an ironic way, you may be encouraging violations of your trademark rights by allowing customers to further your fluid trademark.
- A fluid trademark involving dramatic or frequent changes can be antithetical to developing brand identity and familiarity, which is the essence of trademarking. In short, your customers can become confused about your brand, and new customers may struggle to recognize and identify your brand.
- From a lawyer’s perspective, the biggest risk to creating a fluid trademark is that the registered mark might lose its legal protection and could be cancelled. You might inadvertently permit others to use your mark or variations of the mark
There is a way to avoid the risks but take advantage of the concept of a fluid trademark. Essentially, a mark owner might (1) use each trademark precisely the way the mark was registered and (2) seek trademark registration for variations of the mark that are developed over time. In this way, a mark owner can add “fluidity” to the mark while protecting each mark separately.
If you have trademark questions or have concerns about protecting your brand, please feel free to contact us.
