In a world where the only constant is that there is no constant, brand owners are increasingly looking for alternatives to traditional static advertising. Consumers cry out for choices, for instant gratification, and for constantly updated information. It is no surprise that this drive for reinvention, rejuvenation and reworking of the old has flown over into the trade mark world.

Traditionally, a trade mark was defined as a static image, slogan, word, colour. Something that could be described or shown on paper; that you could use consistently on goods or services to build a familiar brand. But that is changing. As consumers become more brand-savvy and demanding, trade mark owners have the chance to play with their brands.

To engage with this consumer drive for ‘the new’, companies are increasingly using fluid trade marks. Using fluid trade marks gives the impression of an innovative and cutting-edge company. The Google Doodle is one of the oldest and most often-referenced fluid trade marks. By regularly changing how the word ‘Google’ is depicted on its home page, Google keeps consumers engaged with the brand while maintaining a strong, consistent underlying brand.

Over recent years, New Zealand has seen companies embracing the use of fluid trade marks in advertising here. TradeMe’s kiwi logo is frequently changed—the blue bird is recognisable whether it is depicted as running away, staring at a birthday cake, or sitting down with a computer.

(Click here to view logo)

Pak ‘n Save’s stick figure is another example. The stick figure is animated, static, shown in various poses and with additional objects, but providing the yellow background and thick black lines are there, we all know it’s the Pak ‘n Save stick figure. Both companies employ the consumer’s familiarity with the underlying brand to capture imagination.

(Click here to view logo)

When a company employs use of a fluid trade mark, it opens opportunities for consumers to actively engage with marketing. You could submit a doodle to Google, or follow in the Pak ‘n Save stick figure’s steps by shopping as it does. When consumers feel a sense of personal connection with a brand, they become emotionally engaged (and therefore more loyal) with that brand.

As use of fluid trade marks becomes more common, some of the risks associated with modifying a core brand diminish, but the practice is by no means immune from potential problems.

Traditionally, encouraging consumers to dictate branding, or consistently change the look and feel of your brand, is to live dangerously from a trade mark law perspective. Potential problems arise because:

  • under New Zealand trade mark law, it is not clear whether you can enforce rights to a trade mark registration if you have only used the mark in a fluid form
  • a registered trade mark that has not been used as registered for a continuous period of three or more years becomes vulnerable to removal for non-use
  • if your underlying brand is not well-known, then using a fluid trade mark strategy could dilute it beyond recognition.

To minimise these risks, take the time to think before you launch into using a fluid trade mark marketing strategy. Make sure your underlying trade mark is distinctive and capable of maintaining its distinctiveness through any changes you make. This is a much higher level of recognition than is required for registration, and generally requires a well-known underlying mark.

Be consistent about how you change the underlying trade mark. Always use the same colour scheme, or have one word or other element that is always present. Know how much you can change each time you adapt your brand without changing its core identity. Don't leave it to chance. We all recognise the Google Doodle because we all knew the trade mark GOOGLE before the Google Doodle began.

One strategy is to protect each new variant of your underlying brand by obtaining trade mark registrations. This is not always financially or logistically feasible, but it could be considered if there are a limited number of variants. Just keep in mind that if you do not use a registered variant, it will become vulnerable to removal due to non-use. If each variant is transitory, it may not be worth spending the time and money on protection. Searching each variant before using it—to make sure you don't infringe third party rights—is also an issue. Again, if the use is transitory, the risk may be so low as to not warrant a search.

The most important part of your strategy is consistent use of the underlying trade mark. Use your trade mark in the form you have it registered. An un-stylised word mark protects all stylisations of the word.

Until, or unless New Zealand legislation changes to specifically protect fluid trademarks, your best strategy is to register the underlying trade mark, and keep using it separately from your fluid variants.