BRAND IDENTITY


Curtis agrees, although he adds that due to the transient nature of fluid marks, a business has to decide whether the cost of protecting the mark is worthwhile in the long term.


Te type of protection depends on the ‘shelf life’ of the mark, he says.


Pearson adds: “In the US, which recognises common law trademark rights based on use, it is generally not necessary to register every variant of your trademark, although it is good practice to register the underlying mark—the ‘template’, if you will—for the fluid trademark.”


“Once you have the template registered, as long as you use the template consistently, you don’t typically need to register every variant, but it does make sense to focus on whether the new variant contains new matter that may qualify for IP protection. Copyright law may be particularly helpful to protect new matter.”


Curtis recommends that brand owners take advantage of the option to register series trademarks, if available.


Te UK Intellectual Property Office (IPO), for example, allows series trademark applications,


which consist of a number of marks that are “essentially the same”, and where differences in the marks are “not significant”.


It’s also worth considering other IP rights, Curtis adds. “Fluid trademarks are oſten very ‘visual’ brands and so copyright protection can be very important to their protection, as are various forms of unregistered and registered design rights.”


Curtis advises protecting as many forms of the trademark’s ‘fluidity’ as possible, particularly the distinctive and constant part of the mark.


“It’s important that there is a key concept that runs through all the variations of the trademark that can be protected, so that the variants of the trademark should not differ too much from each other,” he says.


“Also, as copyright protection may be an important component in the protection of the trademark, it is key that any copyright in the trademark has been assigned by any outside design or marketing agency and that good records are kept of the creation of the trademark and associated artwork.”


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Curtis also points out the potential problems with non-use. “Fluid trademarks can evolve over time, with new variants of the trademark developing.”


He says that legal teams should keep up with these developments and register major variants as trademarks wherever possible.


“If the ‘use’ of the trademark departs too far


from the ‘registration’ of the mark, then the registrations can become vulnerable to attack,” he says.


With no case law on fluid trademarks, and few mentions of the phenomenon in literature, there’s little direction on how to protect fluid marks and use them to their best effect.


“At the moment, we’re still in uncharted territory,” says Pearson, who first reported on the trend of ‘fluid trademarks’ in 2008. “But I do think that we have a lot of guidance, from our old beloved IP concepts.” 


Rebecca Field, a senior trademark attorney at HGF, assisted Lee Curtis with providing comments for this article.


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.amsterdam www.bNamed.net Trademarks & Brands Online Volume 3, Issue 2 15 .li .vlaanderen


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