Decoding IPR

Introduction
In the contemporary era, where brands endeavour to make palpable connections with consumers, create a lasting image, and attempt to stand out while blending in with trends, fluid trademarks are their primary resort. June 28th marks the anniversary of the Stonewall Uprising in New York City in 1969. Pride month, an annual remembrance of the same celebrates queer culture and demands inclusion of diversity. As June begins, brands prepare to air out their Pride logos to share the enthusiasm and attract diverse customers. These “Pride logos” are a vivid manifestation of what legal scholars and practitioners call “fluid trademarks.” Fluid trademarks are marks that change in appearance while retaining their essential identity, raising important questions about trademark distinctiveness, consumer perception, and legal protection. 

Decoding Fluid Trademarks
A fluid trademark is a mark that undergoes intentional, temporary modifications, often to celebrate events, holidays, or social causes without losing its core identity. Unlike traditional static trademarks, fluid marks are dynamic and adaptable. Examples include Google’s ever-changing Doodles, Absolut Vodka’s artist-designed bottles, and Coca-Cola’s “Share a Coke” campaign. The legal challenge is that trademark law is built on the premise of consistent use, which ensures that consumers can reliably identify the source of goods or services. 

In India, the Trademarks Act, 1999, does not explicitly address fluid trademarks. However, Section 15 allows for the registration of a “series of trademarks,” provided the differences between them are minor and do not substantially affect their identity. Similarly, in the United States, the Lanham Act protects marks that have acquired distinctiveness, but there is little statutory guidance on the treatment of fluid marks. The European Union Intellectual Property Office (EUIPO) allows for the registration of colour marks and marks consisting of a series, but the standards for fluid marks remain ambiguous.

Pride Branding and Trademark Fluidity
Pride logos are a quintessential example of fluid trademarks in action. Each June, global brands, from Apple to Nike, Google to McDonald’s, temporarily modify their logos by incorporating rainbow colours or other LGBTQ+ symbols. These adaptations serve both as a show of support for the LGBTQ+ community and as a marketing strategy to engage consumers who value diversity and inclusion.

The rainbow Pride flag, designed by Gilbert Baker in 1978, the Philadelphia’s People of Colour Inclusive Flag created in 2017, and the “Progress” Pride Flag by Daniel Quasar in 2018 are widely recognized as symbols of LGBTQ+ pride, and often the most incorporated by brand in their logos to show support for diversity in race, sex, gender, and sexual identities. They are not protected by trademark law and are intentionally in the public domain. This allows anyone, including corporations, to use rainbow imagery without seeking permission. Consequently, there is also an ethical question of commercialisation of pride and pride flags by the brands, especially with the trademarking of the pride logos.  

Interpretation of Series Marks under Indian Law
While Section 15 allows registration of series trademarks, the provision remains insufficient because it specifies that an application cannot be updated to be turned into a series trademark until a single trademark has been registered. As explained in the draft Manual of Trademarks 2015, the idea underlying Section 15 pertains to those who assert ownership over several trademarks for the same or similar goods or services with significant similarities in their essential features. 

In the case of Proctor and Gamble v. Joy Creators, the Delhi High Court ruled that a trademark infringement does not necessarily entail that the mark is a carbon copy of a registered trademark. The court stated that, “It will be sufficient if the plaintiff is able to show that the trademark adopted by the defendant resembles its trademark to a substantial degree, on account of extensive use of the main features found in a trademark.” In the case at hand, the defendant had used the phrase “Joy Ultra Look Total Effects”, infringing upon the plaintiff’s trademark on “Olay Total Effects”. As relief, the plaintiffs prayed for punitive and compensatory damages rather than an injunction or the delivery up of the infringing material. This would ensure that brand owners can claim relief for infringement of their fluid trademarks as long as the distinctiveness element remains. 

Furthermore, in the case of Glaxo Group Limited v. Union of India, Voltas Limited & Ors. (2010) in the Delhi High Court, the petitioner sought to register the trademark “Volmax” in Class 5 of Schedule I of the Trade Mark Act 1999. The Respondent, however, argued that they have been using a group of trademarks using the prefix “Vol”. The High Court ordered the reassessment of the decision of the IP Appellate Board, citing a lack of comprehensive assessment of the two competing marks. 

Challenges and Considerations of Trademark Dilution

• Distinctiveness: – The primary legal challenge for Pride logos as fluid trademarks is maintaining distinctiveness. If a logo is altered too radically or too frequently, consumers may no longer associate it with the original brand, undermining the source-identifying function of the mark. This risk is heightened when the modifications involve widely used symbols, such as the rainbow flag, which lack inherent distinctiveness.
• Dilution of Trademark: – The more a brand’s logo is modified, the greater the risk that its distinctiveness will be diluted. Additionally, enforcing rights in a fluid mark can be challenging, as infringers may argue that the modified version is not covered by the original registration. To mitigate these risks, brand owners should consider registering key variations as a “series” under trademark law, where possible, and maintain consistent use of core brand elements.
• Ethical concerns: – As already mentioned, the use of Pride logos must be with sensitivity to the values and expectations of the LGBTQIA+ community. Commercialisation or misuse of the flags can lead to reputational harm, with ramifications of “rainbow-washing”.

Conclusion
Pride logos are an expression of fluid trademarks which allow brands to appeal to diverse consumer interests and garner public support. While India has provisions for the protection of series trademarks, they remain insufficient to address the challenges that come with the application of fluid trademarks. Despite this, from an inference of the judicial decisions, maintaining the distinctiveness of the logo makes its fluidity unlikely to jeopardize trademark rights. As pride logos make their appearances, brands should tread lightly, keeping in mind legal certainty and cultural sensitivity.