By Perry J. Viscounty and Jennifer L. Barry and David B. Hazlehurst of Latham & Watkins
"Fluid" trademarks reflect a new, modern approach to branding that has found great success in the Internet age. As the name suggests, fluid trademarks are marks that change over time. In that regard, the fluid mark concept contradicts traditional trademark principles, which historically have relied on static, unchanging words and symbols with which consumers develop a familiarity over time. This has allowed consumers to build a long-term association of a given mark with the producer or service provider that such mark represents. But consistent with rapidly evolving information technology - and the corresponding opportunities for novel branding and marketing approaches - fluid marks embrace consumer engagement through dynamic, attention-grabbing brand refreshment and regularly changing source identification.
Like any change in use of a trademark, however, utilizing fluid marks is not completely without risk. This article explores the nature and use of fluid marks, including the benefits of employing such marks, as well as potential risks associated with fluid marks under existing trademark law.
What is a fluid trademark?
Fluid marks involve the creation and use of a variety of different, frequently changing variations of a particular trademark, which variations coexist alongside the original mark. These variations typically retain certain features of the underlying mark, but include new design eleme...