Fluid Trademarks Can Create Free Space for Counterfeiters

Fluid trademarks appear in different and frequently changing variations, all based on a specific base brand. While they can be a creative way to connect with audiences, brand owners should use this tool with caution. Those who change their visual brand identity frequently can quickly confuse customers. The brand becomes undifferentiated and loses contour, leading to risks in brand protection.

The best-known example of a fluid trademark comes from Google. The tech company calls them doodles, which are changed daily according to a special event, historical significance or holiday. In China, online providers such as Baidu, China’s leading search engine, and QQ, the most popular online chat forum, have also adopted the concept of a fluid brand.

However, for brands that are not as widely known as Google, Baidu or QQ, the use of a fluid trademark may weaken the brand image and also create more freedom and flexibility for imitators to copy the original trademark. In addition, protecting fluid trademarks in China can be legally difficult due to their dynamic nature and the fact that China’s trademark law does not formally recognize fluid trademarks.

Under China’s Trademark Law, the use of unauthorized variations of a registered trademark may result in the revocation of the registered trademark. Article 26 of the Regulations of the Supreme People’s Court on Several Issues Concerning the Trial of Administrative Cases of Trademark Authorization and Confirmation (2017) does allow some leeway for the use of fluid marks, but with conditions: If the actual use of a mark differs only slightly from the approved registered trademark, but does not alter its distinctive characteristics, it may be considered use of the registered trademark. This means that the legitimate use of a fluid trademark should keep the distinctive features of the registered trademark as the basis.

We recommend that in China, the use of a fluid trademark should be closely related to the distinctive features of the original registered trademark to avoid trademark risks. It also makes sense to register multiple fluid marks if the focus is on protecting the distinctiveness of the original registered mark. Copyrights and design patents can also be used for this purpose.

Photo: Arthur Osipyan on Unsplash

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