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Fluid Trademarks: The Changing Face of Brands Presented by: Lisa Pearson Kilpatrick Townsend & Stockton, LLP www.kilpatricktownsend.com April 30, 2013 2
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The Quintessential Information Age Trademark
Source: http://www.google.com/doodles/
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The Quintessential Information Age Trademark
Google and many other brand owners are flouting conventional wisdom that the best way to build trademark rights is to use the same presentation of a mark, without significant change, over and over. Source: http://www.google.com/doodles/
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Traditional Marks
® People typically think of a trademark or service mark as a static, two-dimensional term or design used to identify a product or service.
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Traditional Marks
Even static conventional trademarks get updated from time to time.
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Non-Traditional Marks Nor are less conventional, more interactive trademarks such a cutting edge trend any more. • Sound Marks: NBC’s three-note chime; Tarzan’s yell
• Moving Image Sequences: Pixar, Dreamworks
• Fragrance Marks: Yarn that smells like plumeria blossoms; cherry-scented fuel exhaust.
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The Constant?
The mark, conventional or not, remains constant for an extended period of time.
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Conventional Wisdom: A Trademark Is a “Signature” Trademarks function as a signature or “source identifier.”
The public may not recognize a particular designation as a source identifier if the designation is not used repeatedly and consistently to identify the same source. 9
The Trend: Fluid Marks • Today, many brand owners seek to energize their marks by making them less constant and less static. • They refresh their marks frequently, not over a matter of decades. • They want to interact with consumers, but not necessarily with gimmicks.
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Fluid Marks: Defining the Trend Not a periodic update of a conventional mark
Not a mere display of a mark in different colors
Not a family of marks used on different products Sources: http://www.neatorama.com/2009/01/22/stories-behind-10-famous-food-logos/; http://www.logoblog.org/apple_logo.php; http://i.zdnet.com/blogs/apple-logo1.jpg; 11 http://www.fastrixtech.com/apple/black-and-white-apple-logo; http://www.forthemommas.com/wp-content/uploads/2010/06/Newmans-Own.jpg; http://showbritz.debritz.net/files/newmansown.jpg; http://spikediet.blogspot.com/2010/06/simple-and-delicious-low-fat-mexican.html
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A Taxonomy-In-Progress of Fluid Marks
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1. Ornamenting the Mark: Cartoon Network Studios
Sources: http://www.youtube.com/watch?v=I4tHvQVkIdE
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2. Different Media: Absolut
One trendsetter was Absolut vodka, which adopted a brilliant marketing campaign in which artists and designers reinterpreted the now iconic shape of its bottle in scores of different images. 14
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2. Different Media: Museum of Arts and Design
NYC’s Museum of Arts and Design wanted a logo that could embody its values, that “seemed inventive and surprising, and that could appear in different ways on different occasions”: “The Museum, after all, is dedicated to artists who take typical forms—say, vessels, or chairs—and transform them over and over again.” Source: http://new.pentagram.com/2008/09/new-work-museum-of-arts-and-de/
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2. Different Media: Channel 4
Channel 4’s station identification spots recast its logo in different media, and also use Channel 4’s own medium (moving images) to animate it.
Source: http://www2.tv-ark.org.uk/channel4/2004.html
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3. Filling A Frame: MTV
No longer only “Music Television,” MTV recently adopted a new logo in which the contours of the logo are filled with images of its stars and content.
Source: http://www.creativereview.co.uk/cr-blog/2010/february/mtv-refreshes-logo
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3. Filling A Frame: City of Melbourne
“At the heart of the new design, the bold ‘M’ presents a full expression of the identity system-immediately recognizable and as multifaceted as the city itself: creative, cultural, sustainable. A celebration of diversity and personal interpretation that is both future-proof and iconic.” Source: http://www.behance.net/gallery/City-of-Melbourne/276451; http://landor.com/#!/work/case-studies/melbourne/
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3. Filling A Frame: DC Comics
“Since DC Comics is defined by its characters and stories, our solution needed to represent a world where opposing forces meet and where the characters and stories evolve and transform. ... The ‘D,’ strategically placed over the ‘C,’ peels back, reflecting the dual identities and depths of personality that are at the core of the characters.” Source: landor.com/pdfs/cases/DCEntertainment-11June2012.pdf?...
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3. Filling A Frame: Chiquita Chiquita Brands asked its consumers to create new sticker designs for its bananas. This type of interactivity • Promotes a connection to the brand • Lets consumers bring meaning to the brand • Deepens emotional engagement • Moves from top-down brand consistency to crowd-sourced brand variety. Source: http://www.nytimes.com/2010/08/22/magazine/22fob-consumed-t.html?_r=1&scp=1&sq=chiquita%20banana %20label&st=cse. From top: Logo from Chiquita Brands; Timothy Reeder; Andrew Stronge; Heather Bloss
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4. Changing the Background Design: Nickelodeon
“Movement was the way to go, constant change made for an energetic network, and kids were the most vital force in the world. Give them something they relate to: change…[O]range generally clashed with everything and that would make the logo stand out….The splat could morph into any image we liked.” Source: http://www.hexanine.com/zeroside/the-future-is-fluid-inside-dynamic-logos/; http://fredalan.org/post/69174412/the-nickelodeonlogo-designed-by-tom-corey-scott
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4. Changing the Background Design: AOL
When AOL split from Time-Warner in 2009, it sought a new identity to underscore its new mission: to inform, entertain and connect the world with extraordinary original content. It adopted a new “invisible” logo to emphasize content and encourage engagement with the brand. Wolf Olins, the designer, considered the original images a starter set, with the idea that users would be able to create their own logo images. “It’s not about it being 1000 logos, it’s that it’s a consistent wordmark that’s consistent and clean.” Source: http://live.wsj.com/video/aol-ceo-tim-armstrong-talks-about-new-logo/FA1B5B96-3267-4090-8905-6B1F94E7FF21.html#!FA1B5B96-3267-40908905-6B1F94E7FF21; http://www.fastcompany.com/1483322/exclusive-interview-wolff-olins-and-aol-why-aols-new-brand-future
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5. Moving Designs: Nordkyn “The visual identity is based on two main ingredients; our newly developed payoff, ‘Where nature rules,’ and weather statistics from the Norwegian Meteorological Institutes. A feed of weather statistics affects the logo to change when the direction of the wind or the temperature changes. On the website, the logo updates every five minutes.” Source: http://www.underconsideration.com/brandnew/archives/where_the_cold_wind_blows.php
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5. Moving Designs: Ollo
Ollo offers wireless internet in emerging markets, and its logo exploits the new multi-touch hardware of smart phones and tablets. Custom software allows for interactive manipulation of the logo to create an infinite number of digital assets. Source: http://www.bibliothequedesign.com/projects/branding/ollo/
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6. Multiple Designs: Louis Vuitton
Louis Vuitton reinvigorated its brand when it started recasting its classic LV toile monogram in new presentations created by fashion designer Marc Jacobs and artist Takashi Murakami. 25
6. Multiple Designs: Casa di Musica
From the different views of its Rem Koolhass building in Porto, Portugal, Casa di Musica created a system of logos. Source: http://www.underconsideration.com/brandnew/archives/the_17_sides_of_a_cultural_id.php
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7. Ever-changing Designs: Knopf
“For every single kind of book Knopf publishes, it seems we have a matching borzoi: minimalist borzois, ornate borzois, borzois with toques. We never get tired of looking through all of them.” Source: http://www.hexanine.com/zeroside/the-future-is-fluid-inside-dynamic-logos; http://knopfdoubleday.com/design-a-borzoi-contest
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7. Ever-changing Designs: Saks
Venerable Saks Fifth Avenue adopted an award-winning new branding initiative that transforms its classic script logo into a striking new graphic image that can be reshuffled endlessly. Source: http://www.pentagram.com/work/#/all/all/newest/223/
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7. Ever-changing Designs: MIT Media Lab
“The new visual identity of the MIT Media Lab is inspired by the community it comprises: Highly creative people from all kinds of backgrounds come together, inspire each other and collaboratively develop a vision of the future.…The logo is based on a visual system, an algorithm that produces a unique logo for each person, for faculty, staff and students.” Source: http://www.pentagram.com/work/#/all/all/newest/223/
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7. Ever-changing Designs: Fluidity
Los Angeles water design firm Fluidity specializes in the medium of water, which inspired an identity that “is not one logomark but an infinite number of visual expressions inspired by refraction and behaving as one with the subject matter.” According to Thirst, its outside design firm, the “identity typography questions the need for legibility while placing a higher value on recognition.” Source: http://happenings.3st.com/2013/02/new-work-fluidity-identity-website/#
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Characteristics of Fluid Marks These examples help define the new trend of “fluid” trademarks: Trademarks that are not presented in a uniform format but are instead intentionally dynamic and interactive.
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Fluid Marks: The Impetus for the Trend
• A natural outgrowth of new media and information technology. • “Like hyperactive children, Internet marks do anything they can to get attention.” Erik H. Kahn, “On the Net, Unusual Marks Gain In Importance,” Nat’l L.J., Oct. 19, 1998, at C13.
• Reflect the information overload and hectic pace of our times. 32
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The Marketing Perspective
Source: http://www.lovemarks.com/
• Today’s marketers seek to create emotional connections between brands and customers. • Fluid trademarks help develop long-term relationships between consumers and their favorite brands.
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The Design Perspective “Designing a fluid identity can help bring that needed awareness to an organization, but it shouldn’t be a gimmick at heart. This way of thinking about identity design only works when it’s an outgrowth of the brand’s distinctive DNA. … Some brands might need to show diversity of service or product, while others see flexibility as a crucial competitive advantage, and other organizations have evolution written into their foundations.” Hexanine, The Future Is Fluid: Inside Dynamic Logos (posted March 9, 2011),
Source: http://www.hexanine.com/zeroside/the-future-is-fluid-inside-dynamic-logos/
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Merging The Mark and Message • “In the industrial age, a logo was just a signature. It should be a message,” comments Marc Gobé, CEO of Emotional Branding LLC and author of Brandjam: Humanizing Brands Through Emotional Design (2007). • Fluid trademarks communicate. They invite consumers to interact, project and connect the dots. 35
The Marketing Perspective
Brand orthodoxy says that the brand should “keep it simple” and repeat itself constantly, like an old vaudevillian who doesn’t mind doing his jokes over and over again because, hey, that’s what got him here…. The consumer now appears to believe that the brand should earn its public attention the way all of us must. Say boring, repetitive stuff and you suffer the punishment that every bad conversationalist faces. First, we ignore you. Then, we exclude you. Grant McCracken, Harvard Business Review Blog Source: http://blogs.hbr.org/cs/2012/08/the_logic_breathing_life_into_oreos_new_branding.html
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The Marketing Perspective
Brands should nowadays give themselves permission to be more surprising, to flirt with their customers, to listen to what they have to say and to cater to their desires. A modern brand should take leaps of faith, abandon self-obsessions and embrace risk. Conversely, by not doing this, the brand could become irrelevant in a hurry. Jose Martinez Salmeron, Executive Creative Director for Social@Ogilvy at Ogilvy Washington
Source: http://brainfood.momentumww.com.au/2011/10/adventures-in-packaging/; http://www.nytimes.com/2006/10/17/business/media/17adco.html?_r=0
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Best Practices: Start With A Strong Mark 1. The most suitable marks for use as templates for fluid marks are strong, established marks with a history of use and strong consumer recognition. That way the public will understand the variant as a play on the underlying mark, enhancing the fame and strength of the original.
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Best Practices Does this ubiquitous New York subway campaign build brand awareness?
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Best Practices: Register the Underlying Mark 2. Ideally, the underlying mark should be registered. That official certificate can be particularly useful in this context because the interactivity of fluid marks invites others to come up with their own creative iterations.
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Best Practices: Continue Using Underlying Mark 3. The underlying mark should continue to be used. Ongoing use of the underlying mark will keep it alive and help establish priority dates back to the underlying mark.
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Best Practices: Avoid Random Acts of Fluidity 4. Be fluid, be nimble - but don’t be random. The new presentations of the mark should retain the basic characteristics of the underlying mark.
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Best Practices: Avoid Random Acts of Fluidity (Google may have gotten a little carried away with this homage to Jackson Pollock.)
Source: http://www.google.com/doodles/jackson-pollocks-birthday-courtesy-of-the-pollock-krasner-foundation-ars-ny
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Best Practices: Adopt A Signature Style 5. It also makes good sense to be “fluid” in a signature style.
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Best Practices: Protect New IP 6. The new matter in each variant of a fluid trademark may be protectible under trademark, copyright, design or patent laws in its own right. Consider how best to protect it. •
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US copyright law protects the new and original artwork with which Google decorates its logo even if that artwork is not used often enough to function as a source identifier in itself. Louis Vuitton sued Dooney and Bourke for trademark infringement when the latter came out with a handbag with a colorful pattern that evoked the popular Louis Vuitton multicolored bag.
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Best Practices: Protect New IP
Source: http://patimg1.uspto.gov/
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Best Practices: Clear Rights in New Matter 7. Conversely, the new matter in a variant may violate someone else’s rights, so institute proper clearance procedures.
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Best Practices: Be Prepared 8. Fluid trademarks invite people to engage, and they probably will. Be prepared for fan use and parody.
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Best Practices: Be Prepared •
Terms of use may check some abuse.
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Many brand owners try to corral the energy and creativity of their fans by providing an authorized forum for submissions.
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Best Practices: Enforce Strategically 9. Brand owners need to consider how vigorously they want to police and enforce their marks in this context because they risk alienating their most loyal customers. • Word demand letters carefully. • Pick the right test case. • Otherwise, this marketing strategy may backfire and permanently singe the brand.
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Best Practices: Teamwork 10. Designers, brand managers and intellectual property lawyers should work hand in hand from conceptualization of the fluid mark through the clearance, adoption, use, possible registration, policing and enforcement of each iteration. Brand Managers
Designers
IP Lawyers
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Conclusion
Fluid trademarks call for close collaboration between trademark lawyers who think outside the box and creative and marketing teams who will listen to them (and vice versa). 52
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Conclusion Done right, adopting a fluid trademark can enhance both the brand owner’s intellectual property portfolio and the appeal of its brand.
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Resources Lisa Pearson, “How Fluid Trade Marks Can Enhance your Brand,” Managing Intellectual Property 2 (May 2008), http://www.kilpatricktownsend.com/~/media/Files/articles/ HowFluidTradeMarksCanEnhanceYourBrand.ashx (examining new trend in trademarks under U.S. law) Flip Petillon and Cedric Vanleenhove, “Protect Your Fluid Trade Marks in Europe,” Managing Intellectual Property 50 (September 2009), http://www.crowell.com/ documents/Protect-your-fluid-trade-marks-in-Europe.pdf (examining the trend under European law) Logo Design Love, http://www.logodesignlove.com/ (design blog with occasional articles on specific fluid marks, including DC Comics, IDC Congress, and others) Hexanine, The Future Is Fluid: Inside Dynamic Logos (posted March 9, 2011), http://www.hexanine.com/zeroside/the-future-is-fluid-inside-dynamic-logos/ (design blog article collecting examples of different “fluid identities”) Jose Martinez Salmeron, “If You Love Your Brand Set It Free,” Smashing Magazine (posted February 8, 2013), http://www.smashingmagazine.com/2013/02/08/if-you-love-yourbrand-set-it-free/. 54
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Thank you. Lisa Pearson, Esq. Kilpatrick Townsend & Stockton The Grace Building 1114 Avenue of the Americas New York, NY 10036-7703 USA (212) 775-8725
[email protected] © 2013 Lisa Pearson
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