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Negotiators modernize the international system for registration of geographical indications

There is an increasing number of companies interested in promoting their products or services through non-traditional brands. Once of the most interesting groups to study, given its novelty and continuous change, is the “fluid trademarks”, which arose as a result of successful internet businesses. Its characteristics are the opposite of those of traditional trademarks, which have been historically built upon words and static and unchangeable symbols; although this construction has functioned over time, today it is necessary to consider new factors upon elaborating a new promotional strategy, such as the evolution of technology and the new demands of consumers.

As a matter of fact, “fluid trademarks” correspond to variations of original brands, but with a different look. These variations may coexist with the original brand, given that even though they incorporate new design elements, they preserve their inherent distinguishing features.

A recent and successful example of “fluid trademarks” is Google’s Doodle, which correspond to modified versions of the brand’s original logo; these variations are updated on a daily basis, and vary based upon relevant events: they celebrate, inter alia, festivities, births, inventions and historical events. Their themes range from science, football and music to celebrations, such as the independence day of a country, “Father’s Day” or “Valentine’s Day”. They are so popular that not only do they attract the attention of users, but also of the media in general. Indeed, several Doodles are shared on social networks, which increases further their success, since people, at their own motion, decide to promote and disseminate them (to see Doodles, please go on www.google.com/doodles).

Now then, notwithstanding their success, “fluid trademarks” present challenges arising from their very attributes. One of the most significant is given by the fact that ever since they are not used in their “original” form (trademark), they may be affected by caducity procedures on grounds of lack of use. Put in other words, since they are constantly varying, their use is limited to an application at a given moment, or for a given event or decision of the holder company, and therefore, their use will be sporadic or temporary, but not permanent over time. Under this assumption, third parties would be entitled to request the caducity of a “fluid trademark” on grounds of non-permanent use.

Another challenge to take into consideration is that, on account of “fluid trademarks” being constantly changing and inherently creative, it is possible that people external to the holder company may create and disseminate their own extraordinary deliveries, thereby giving rise to confusion amongst the observing public, and undermining the brand’s distinctiveness. In this sense, it is necessary to emphasize that there is no remedy governing the interest of third parties in the creation of variations of brands which are not proprietary to them.

Daniela Meza