AOL’s fluid is fitting in light of its stated mission to “inform, entertain and Fluid : connect the world;”4 the dynamic, changing presentation of its communicates this All Fun, or Some Risk? information-age message to consumers. An example of an interactive fluid trade- By Perry J. Viscounty, Jennifer L. Barry and holiday. Google refers to these variations as mark in the physical (i.e. non-Internet) David B. Hazlehurst of Latham & Watkins LLP “Google Doodles.” An example of a Google world is the umbrella mark used by the Doodle from a recent Christmas holiday can insurance company travelers. travelers be seen here: has set up an interactive visual display Introduction of its umbrella mark in the Minneapolis “Fluid” trademarks reflect a new, mod- airport. as travelers pass alongside the ern approach to branding that has found display, or stop and approach it, the image great success in the Internet age. as the reacts in real time to the traveler’s move- name suggests, fluid trademarks are marks ment: the red flower petals that form the that change over time. In that regard, the image of the umbrella appear to blow away fluid mark concept contradicts traditional Google doodles are extremely popular, and disperse, scattering randomly. once trademark principles, which historically and have attracted the attention of both the the individual walks away from the display, have relied on static, unchanging words press and the public. For example, Internet the petals re-gather to restore the Umbrella and symbols with which consumers develop and other media outlets commonly report shape: a familiarity over time. this has allowed on the latest doodle.1 In fact, so popular consumers to build a long-term association are the Doodles that Google has created a of a given mark with the producer or service dedicated Doodle webpage at which visitors provider that such mark represents. But can view an archive of every doodle that consistent with rapidly evolving informa- Google has published.2 tion technology – and the corresponding In addition to varying the underlying opportunities for novel branding and mar- GOOGLE mark by adding design elements keting approaches – fluid marks embrace in its Doodles, Google has created interactive consumer engagement through dynamic, marks. For example, on the 30th anniversary attention-grabbing refreshment and of the famous arcade game Pac-Man, Google’s regularly changing source identification. Doodle consisted of an interactive Pac-Man Like any change in use of a trademark, game that featured the letters of the word however, utilizing fluid marks is not com- “Google” in the Pac-Man maze. Visitors to pletely without risk. this article explores the Google website were even able to play the the nature and use of fluid marks, including Pac-Man game in the Doodle:3 the benefits of employing such marks, as well as potential risks associated with fluid This fun, engaging display draws the con- marks under existing trademark law. sumer’s attention and causes him or her literally to interact with the Travelers mark. What is a fluid trademark? The beverage company Perrier also has Fluid marks involve the creation and use As another example, the media and web successfully used a fluid trademark. While of a variety of different, frequently changing development company aol has invoked Google’s and aol’s fluid trademarks var- variations of a particular trademark, which fluid trademarks using a single “invisible” ied the design elements surrounding the variations coexist alongside the original word mark that is presented against varying underlying mark, Perrier’s fluid trademark mark. These variations typically retain cer- backgrounds: actually altered the word mark itself. In tain features of the underlying mark, but 2006, Perrier launched a campaign that include new design elements. transformed the word mark PERRIER on Examples of Fluid Trademarks its bottles of sparkling water into other The most notable modern example of words of similar length that, like “Perrier,” a successful fluid trademark comes from end with “ier.” The words used by Perrier the Internet search and advertising com- included “luckier”, “sassier”, “crazier,” pany Google. As many Internet users have “scarier”, “prettier” and “riskier.” But observed over the last several years, Google as can be seen in the images below, the often creates and displays variations of the Perrier brand remained immediately iden- Google logo on its homepage. For example, tifiable despite the word change given the during a given holiday, Google uses a words’ appearance on Perrier’s well-known variant of its GOOGLE mark that incorpo- label and bottle, utilizing its otherwise rates images associated with that particular unchanged coloration and :

26 Intellectual Today FEBRUARY, 2014 However, there is a problem with this The modified mark must contain approach. Even if multiple variations could what is the essence of the original be articulated with satisfactory precision in mark, and the new form must create a trademark application, the United States the impression of being essentially and trademark office (“PTO”) the same mark. the general test of likely would not permit registration because whether an alteration is material is an application for federal trademark reg- whether the mark would have to be istration is limited to just one mark at republished after the alteration in a time. See TMEP § 807.01; In re Int’l order to fairly present the mark for Protection of Fluid trademarks Flavors & Fragrances Inc., 183 F.3d 1361, purposes of opposition. If one mark Federal Registration of Fluid Trademarks 1366 (Fed. Cir. 1999) (“under the Lanham is sufficiently different from another While, as discussed, fluid trademarks Act, a trademark application may obtain mark as to require republication, it can present an engaging approach to brand registration of only a single mark in any would be tantamount to a new mark refreshment, such marks are not well one application”). analogous applications appropriate for a new application. accounted for under established trademark addressed in the tMEP and trademark See TMEP §§ 807.14 et seq. rules and procedures. On the one hand, the case law suggest that the PTO may apply Consistent with the TMEP’s broad defini- Supreme court has recognized that there this rule to reject registration of a fluid tion of “materially different,” the Trademark is a broad universe of material that can mark. For instance, in In re Upper Deck Trial and appeal Board (“TTAB”) has potentially serve as a protectable trademark. Co., 59 U.S.P.Q.2d 1688 (T.T.A.B. 2001), applied a relatively low standard for deter- See Qualitex Co. v. Jacobson Prods. Co., the TTAB found invalid an application that mining when a mark is considered to be Inc., 514 u.S. 159, 164 (1995) (“It is the sought to register a hologram affixed to a “materially different.” See, e.g., In re Hot source-distinguishing ability of a mark – not trading card without specifying the specific Stuff Foods, LLC, Serial no. 77392514 its ontological status as color, shape, fra- shape of the hologram. Rather, the applica- (T.T.A.B. Mar. 8, 2013) (two marks were grance, word or sign –that permits it to serve tion sought all variations of the claimed materially different when the outline of top- these basic purposes.”). But, and perhaps hologram, for example those taking the pings and crust was added to an image of an more importantly, the Trademark Manual of shape of a baseball field or racing flag. The originally plain slice of a pizza, which was Examining Procedure does not provide for TTAB held that the “missing or change- shown in the background behind the word the federal registration of fluid trademarks. able” elements of the claimed mark vio- mark HOT STUFF PIZZA); In re Guitar Specifically, there is no established path for lated the rule that a registration may only Straps Online, LLC, Serial no. 85047191 a obtaining a trademark registration covering cover one mark. See In re Upper Deck Co., (T.T.A.B. May 9, 2012) (the addition of a multiple variations of an underlying mark, 59 u.S.P.Q.2d 1688, 1690-91 (T.T.A.B. “?” to a mark was a material alteration); In which is what would be needed to obtain a 2001); see also TMEP § 807.01. like re Thor Tech, Serial No. 78717682 (T.T.A.B. registration in a fluid mark. a hologram application covering multiple Aug. 13, 2010) (changing a mark from Moreover, there is no method for a “changeable elements,” an application for Mt raINIER to raINIER was a material brand owner to describe a fluid trademark a fluid mark seeking to encompass multiple alteration); In re Spring Café Realty LLC, adequately in a trademark application. To images representing the variations of the Serial no. 78536106 (T.T.A.B. oct. 29, capture the essence of a fluid trademark for underlying mark may likewise be rejected. 2007) (changing a mark from BARMACHE purposes of a federal trademark applica- to BARMARCHE was a material alteration). tion, the applicant would have to describe Determining Whether Changes as small as the addition of a house each of the distinct variations of the mark. an Application Covers mark to a trademark have even been consid- But there is no established, straightforward Multiple Marks ered a material alteration. See In re Pierce way to do this. one possibility would be Whether a fluid mark application would Foods Corp., 230 u.S.P.Q. 307 (T.T.A.B. to submit a drawing that captures all of be rejected for seeking to register multiple 1986) (amendment of a mark by the addition the variations, for example through the marks at once would turn on whether the of a house mark was not permitted). use of a dotted line or some other marking multiple variations submitted constituted Generally, only when the variations of or symbolic indicator that identifies the “materially different” drawings. If so, the a mark are minor does the ttaB con- modifications to the underlying mark that variations would not be allowed as a single sider such variations not to be “mate- each respective variation would exhibit. mark under one registration: the tMEP rial.” See, e.g., In re Innovative Cos., LLC, As precedent, an applicant could look to provides that an application including 88 u.S.P.Q.2d 1095 (T.T.A.B. 2008) applications for trade dress registrations. two or more drawings “displaying materi- (“FREEDOM STONE” as two words Trade dress applicants commonly submit ally different marks” will be rejected. See held to not be a material alteration of drawings and descriptions that articulate TMEP § 807.01. “FREEDOMSTONE” as a single word); the scope and bounds of the subject trade Whether such drawings are materially Paris Glove of Canada, Ltd. v. SBC/Sporto dress, including using dotted lines to depict different from one another is not a clear-cut Corp., 84 U.S.P.Q.2d 1856, 1862 (T.T.A.B. features that are not claimed as part of the inquiry. Generally, the analysis focuses 2007) (“[T]here is no material alteration mark, but rather “merely [] show the posi- on whether one drawing (described as the between the original, registered aQUA tion of the claimed portion of the mark.” “modified mark” in the TMEP) is a “mate- STOP rectangular form of the mark which Trademark Manual of Examining Procedure rial alteration” of the other drawing (the shows the words depicted on two lines, and (9th ed.) (“TMEP”) § 1202.02(c). “original mark”). According to the TMEP: … in the case of the semicircular form,

Intellectual Property Today FEBRUARY, 2014 27 as one word.”); In re Finlay Fine Jewelry is similar to several of them, and is a logi- defendant dooney & Burke introduced a Corp., 41 U.S.P.Q.2d 1152 (T.T.A.B. 1996) cal variation of the underlying mark based collection of handbags which featured its (“NY JEWELRY OUTLET” not materially on the trademark owner’s already existing own “DB” monogram in a variety of bright different from “NEW yorK JEWELRY variations. In such a situation, it seems colors set against a white background. a OUTLET”). sensible for the brand owner to be afforded side-by-side comparison of Louis Vuitton’s In light of the ttaB’s broad approach the protection of the full scope of the fluid Monogram Multicolor pattern and dooney to finding drawings to be “materially dif- trademark, including variations that may & Burke’s multicolor DB monogram pattern ferent,” it is likely that most variations not be identical to specific variations it had is shown here: of an underlying mark that form a fluid previously used, but fall logically within trademark would be considered materially the range of variations covered by the fluid different and therefore not properly treated mark. this could include, for example, a as a single registration. Google Doodle created by a third party that is not identical to any existing Doodle, e.g., Filing Separate one that relates to a holiday for which no Applications to Cover Doodle has already been created by Google. Distinct Variations Although this issue has not been squarely Because it likely would be difficult – if addressed by the courts, the case of Louis not impossible – to register the different Vuitton Malletier v. Dooney & Burke, Inc., In light of aesthetic similarities between variations of an underlying mark through 454 F.3d 108 (2d Cir. 2006), touches upon the dooney & Burke handbags and the one trademark application, a better strategy many of the issues that may face a trade- Louis Vuitton handbags, louis Vuitton would likely be to file separate trademark mark owner attempting to enforce its rights asserted infringement of both its registered applications for each of the variations. in a fluid trademark. In that case, louis Toile Monogram Mark and its unregistered For example, Google could register each Vuitton had been using its entwined “LV” Monogram Multicolore Pattern Mark against of its individual doodles as a separate initials (the “Toile Monogram Mark”) for Dooney & Burke. The Southern District of mark with the PTO. However, there are over a hundred years and owned an incon- New york denied louis Vuitton’s motion practical reasons why registration of the testable federal registration for its toile for a preliminary injunction against Dooney variants of a fluid trademark may not be an Monogram Mark. Id. at 112. For example: & Burke’s continued sale of the hand- effective way to protect a fluid trademark. bags. although it held that luis Vuitton’s The registration process is lengthy, and a claimed mark was protectable, it found no particular variant on a fluid trademark is likelihood of confusion between the two typically only used by a brand owner for companies’ handbags. a short duration because the purpose of a On appeal, the Second Circuit affirmed fluid trademark is to keep the brand fresh in part and vacated in part. the court and to keep consumers engaged. Moreover, focused its analysis on the unregistered amassing a large portfolio of individual Monogram Multicolore Pattern Mark, which registrations could become costly in light Louis Vuitton claimed to consist of the of registration fees and legal fees relating to synergy between the bright colors and the application process. the toile Monogram Marks. the court Enforcement of Fluid Trademarks explained that, to qualify for protection under Section 43(a), an unregistered mark Unregistered Trademark must be distinctive. this requires a find- Protection ing of “inherent” distinctiveness, or that A fluid trademark can be protected in the mark has acquired “secondary mean- the united States even if a brand owner ing.” the court held that louis Vuitton’s cannot or elects not to obtain a federal See U.S. Registration Nos. 0,297,594 (Sept. Multicolore Monogram Pattern Mark was registration. unregistered trademarks are 20, 1932) (luggage, pocketbooks, satchels, original in the handbag market, and thus it afforded protection under Section 43(a) and hat/shoe boxes); 1,643,625 (May 7, was inherently distinctive. Id. Additionally, of the lanham act, state unfair compe- 1991) (leather and imitation leather prod- the Multicolore Monogram Pattern Mark tition laws and common law trademark ucts, including traveling, hand, and shoul- earned praise among consumers, and had rights. thus, fluid trademarks potentially der bags used for luggage). become famous almost instantly. thus, may enjoy protection as unregistered trade- In october 2002, louis Vuitton the Multicolore Monogram Pattern Mark marks. However, an important question is launched a new series of handbags that was both inherently distinctive and had whether such protection would cover the featured the Toile Monogram Mark printed acquired secondary meaning, and was fluid trademark as a whole (i.e. including in 33 bright colors on a white or black therefore protectable. Id. all variations), or if it would cover only a background (the “Monogram Multicolore As to likelihood of confusion, the Second particular variant within the fluid mark. Pattern Mark”). Similar to a fluid trade- Circuit remanded the case back to the For example, one can imagine a situation in mark variant, the Monogram Multicolor district court, finding that the lower court which an infringer creates a new variant of Pattern Mark was a mutation of the under- improperly made a side-by-side compari- a fluid trademark that is not identical to any lying toile Monogram Mark. one year son of the two marks, rather than com- one of the trademark owner’s variants, but after Louis Vuitton launched its handbags, paring the marks “sequentially,” as they

28 Today FEBRUARY, 2014 are seen in the marketplace. on remand, nal[] and ornamental design for an article would have believed that Mattel sponsored the district court ultimately threw out of manufacture,” they may be protected as or was affiliated with his work.”). the case on summary judgment, holding design . 35 U.S.C. § 171. Even util- Moreover, even if a consumer’s use is not that there was no likelihood of confusion, ity patents may offer some protection, to the protected by nominative , a brand largely because Louis Vuitton’s Multicolore extent a fluid mark implicates a “new and owner may not wish to enforce its rights Monogram Pattern Mark used a larger font useful process, machine, manufacture, or against consumers and fans. Such action size and consisted of a combination of let- composition of matter.” 35 U.S.C. § 101. For could risk tarnishing the brand’s reputation ters and shapes. See Louis Vuitton Malletier example, Google obtained a utility patent among its customers, thereby harming its v. Dooney & Bourke, Inc., 561 F. Supp. 2d relating to its Google doodles. the patent, business. Thus, a brand owner with a fluid 368 (S.D.N.Y. 2008). entitled “System and Method for enticing mark could find itself in the unenviable A few lessons can be learned from the Users to a Web Site,” covers a method for position of choosing between allowing its Louis Vuitton case in the fluid trademark periodically changing a home page so it mark to be used and manipulated freely, or context. First, even if the underlying mark appears to display a story line. See u.S. suing its own customers or fans. is registered, it is possible that the court Patent No. 7,912,915 (March 22, 2011). Confusion among Consumers may focus on unregistered rights in the By its nature, a fluid trademark is variation rather than the registered rights in risks of USING fluid trademarkS constantly changing. If too many different the underlying mark. Thus, it is important Third-Party Variations of Underlying Mark variations of the underlying mark are used, that a trademark owner be able to articu- consumers may become confused as to the late clearly the scope of the fluid trade- By their dynamic and interactive nature, source associated with a given trademark. mark variant over which it claims rights. fluid trademarks may imply an invitation For example, consumers may not easily Additionally, it may be difficult to protect a that consumers should respond to changes recognize the brand in the variant marks variant of a fluid trademark under Section in a given mark, including by creating their because of the additional elements added 43(a) because that section of the lanham own unique modifications to the underlying to fluidize the mark. Thus, fluid marks may Act requires that the mark be distinctive. It mark (e.g., on a blog or social media feed). defeat the very purpose of branding and is likely that while the underlying mark of This could result in rapid creation and trademarks, which is to build association a fluid trademark is inherently distinctive proliferation of unauthorized variations of a between a given mark and a known pro- or has acquired secondary meaning, any mark by consumers and other third parties. ducer or service provider. given variant of the fluid trademark may not This can be problematic because enforc- be inherently distinctive and may not have ing fluid trademark rights against a con- Weakening of Underlying Mark acquired secondary meaning. not every sumer who creates his or her own variation Because fluid trademarks may create variation will achieve immediate fame like may be difficult under the doctrine of consumer confusion, fluid marks also raise Louis Vuitton’s Multicolore Monogram “nominative fair use.” Nominative fair use the risk of “weakening” the underlying Pattern Mark did. precludes liability mark. this makes enforcement of rights where (1) the product or service cannot in connection with such mark more dif- Other Intellectual be readily identified without using the ficult. See, e.g., 1 Anne Gilson LaLonde, Property Protections trademark; (2) the user only uses as much Gilson on Trademarks § 2.01[2] (Matthew Other types of intellectual property protec- of the mark as is necessary for identifica- Bender 2013) (“‘Strong’ marks that have tion, such as or patent principles, tion; and (3) the user does nothing to sug- a high degree of distinctiveness are ... pro- may afford protection to fluid trademarks. gest sponsorship or endorsement by the tected against the use of similar marks on Copyright protects original works of author- trademark owner. New Kids on the Block a wider range of goods or services than are ship fixed in a tangible medium of expres- ‘weak’ designations that have less distinc- sion, and therefore likely would cover v. News Am. Pub., Inc., 971 F.2d 302, 308 tiveness or market recognition.”) (quoting original designs that are used to fluidize a (9th cir. 1992). unauthorized consumer- Restatement (Third) of Unfair Competition trademark. Indeed, courts and commenta- created variations of a given mark could § 21 cmt. i (1995)). Therefore, the use of a tors have long acknowledged that trade- be deemed “nominative fair use” if these criteria are satisfied, and therefore could be fluid trademark may weaken the scope of marks may be copyrighted. See J. Thomas protection of both the underlying mark and McCarthy, McCarthy on Trademarks and beyond the control of the mark’s owner. For variants of the fluid mark. Unfair Competition § 6:18 (4th ed.) (“An instance, if a consumer invokes the mark image can be both copyrighted and a trade- for purposes of communicating news about Abandonment of Underlying Mark mark.”). Thus, each variation comprising a the brand or creating a parody regarding Another potential risk is abandonment. fluid mark could potentially be eligible for the brand, this would likely be protected as The lanham act provides that “a mark copyright protection. nominative fair use. See, e.g., Mattel, Inc. v. shall be deemed abandoned . . . when Patent law may also afford some protec- Walking Mountain Prods., 353 F.3d 792, the use has been discontinued with an tion to fluid marks. design patents pro- 812 (9th cir. 2003) (“Barbie would not intent not to resume,” which intent “may tect the ornamental design of a functional be readily identifiable in a photographic be inferred from the circumstances.” 15 item, such as handbags and sunglasses. work without use of the Barbie likeness and U.S.C. § 1127 (2006). thus, where a See, e.g., U.S. Patent Nos. D466,689 (Luis figure. [Defendant] used only so much as brand owner uses fluid trademarks to the Vuitton handbag); d557,325 S1 (Oakley was necessary to make his parodic use of exclusion of the originally protected mark, sunglasses). thus, to the extent various Barbie readily identifiable, and it is highly there is risk that the original mark may aspects of a fluid mark constitute an “origi- unlikely that any reasonable consumer be subject to a finding of abandonment.

30 Intellectual Property Today FEBRUARY, 2014 Among other things, this would permit a not be tacked to “THE MOVE BUFF’S Additional protection. A brand owner competitor to have the original mark’s reg- MOVIE STORE” because moviebuff.com should consider whether copyright or pat- istration with the PTO cancelled. See, e.g., had three fewer words, moviebuff.com did ent protection is available for a new variant Stromgren Supports, Inc. v. Bike Athletic not have a possessive ending, it omitted of the mark. As noted above, both forms of Co., u.S.P.Q.2D (BNW) 1100, at *42-43 a space, and added “.com” to the end); protection may apply, and are not mutually (T.T.A.B. 1997) (cancelling registration as Data Concepts, Inc. v. Digital Consulting, exclusive to trademark protection. abandoned in light of non-use). Inc., 150 F.3d 620, 623 (6th cir. 1998) Terms of use. A fluid trademark Tacking (“DCI” and “dci” not sufficiently similar to should engage and interact with the public. support tacking); Pro-Cuts v. Schilz-Price However, if a brand owner chooses to permit One means of avoiding abandonment is Enters., 27 u.S.P.Q.2d 1224 (T.T.A.B. fan use and parodies of its fluid trademarks, “tacking” the new variation to the original 1993) ( “PRO-CUTS” could not be tacked it should consider drafting terms of use that mark. this is permissible when the new to “PRO-KUT”). cover fan use of its trademark. For exam- variation of the mark creates the same In light of this, brand owners may not ple, Google maintains a “Rules for Proper “commercial impression” as the old form of be able to rely on tacking to avoid aban- Usage” webpage regarding use of its mark.5 the mark. The Ninth Circuit has explained donment in cases where they use fluid Through this page, Google permits use of this principle, noting that “[w]ithout tack- variations to the exclusion of the original, its marks only in certain ways and subject ing, a trademark owner’s priority in his underlying trademark. to certain requirements. For instance, users mark would be reduced each time he made must distinguish the GOOGLE mark from the slightest alteration to the mark, which the surrounding text in some way and may would discourage him from altering the Best practices for Brand owners only use the GOOGLE mark as an adjective mark in response to changing consumer using a fluid trademark (rather than a verb or noun). preferences, evolving aesthetic develop- Given the risks discussed above, brand Clearance. Brand owners should con- ments, or new advertising and marketing owners should consider the following guide- sider conducting clearance procedures styles.” Brookfield Commc’ns, Inc. v. West lines when using fluid trademarks: before using a new variation of a fluid Coast Entmt Corp., 174 F.3d 1036, 1048 Strong mark. Before adopting a fluid mark. Although it may be difficult to con- (9th Cir. 1999). mark, an owner should ensure that the duct searches due to the fast-paced nature An important caveat is that tacking is underlying mark is strong. This minimizes of an ever-changing fluid trademark, it is subject to a relatively strict standard. a the risk of consumer confusion by making prudent to conduct a trademark search mark may be tacked to the earlier use of sure the public understands a given fluid another mark only if “[t]he previously used variation as indicative of the same source to ensure that the new variation will not mark [is] the legal equivalent of the mark as the underlying mark. infringe another party’s trademark rights. in question or indistinguishable therefrom Registration. the underlying mark To prevent the trademark search and clear- such that consumers consider both to be should be registered. registration of the ance process from holding up any market- the same mark.” Brookfield, 174 F.3d at underlying mark may be useful if a third ing efforts, a good business practice for 1047-48. Tacking is allowed only if the two party infringes one of the fluid trademark brand owners to consider is creating and marks are so similar that consumers gener- variants. the brand owner may be able to maintaining a steady pipeline of new trade- ally regard them as essentially the same. Id. assert infringement of the underlying mark, mark variations. at 1048. “The marks must create the same, and the federal registration will provide a Enforcement. Brand owners should continuing commercial impression, and the presumption of validity. In addition, to the think before initiating enforcement actions. later mark should not be materially differ- extent resources permit, a brand owner should Enforcement is important to protecting a ent from or alter the character of the mark consider whether it makes sense to register trademark, but it should be done carefully attempted to be tacked.” Id. particular variations of the underlying mark and with forethought. If a brand owner does Courts have applied this standard rela- to maximize protection over the fluid mark. decide to send a cease-and-desist letter, it tively rigidly. See, e.g., Van Dyne-Crotty, Continued use. A brand owner should should be worded very carefully. Consumers Inc. v. Wear-Guard Corp., 926 F.2d 1156, continue to use the underlying mark in its often publicize cease and desist letters by 1159 (Fed. Cir. 1991) (“CLOTHES THAT original form when adopting a fluid mark. posting them on internet sites. a strongly WORK. For tHE WORK you do” Ongoing use of the mark avoids the risk of worded letter to a customer or fan could could not be tacked to “CLOTHES THAT abandonment and allows the brand owner tarnish a brand’s reputation among such WORK”); One Indus., LLC, v. Jim O’Neal to rely on the priority date of the underly- customers. IPT Distrib., 578 F.3d 1154, 1160 (9th cir. ing mark (to the extent the variation may be 2009) (angular “O” mark could not be “tacked” onto the underlying mark). Endnotes tacked to the prior use of a rounded “O” Likewise, each variation comprising a 1. For instance, Time Magazine published an article regarding a doodle that paid tribute to famed mark because the apostrophes were differ- fluid trademark should maintain the source- social worker and Nobel Peace Prize winner Jane ent, the lower and upper horizontal lines of identifying characteristics of the underlying Addams on her birthday. See http://newsfeed.time. the rounded “O” mark were thinner than mark, such as signature colors or stylized com/2013/09/06/todays-google-doodle-honors- nobel-prize-winner-jane-addams/. the corresponding lines on the angular “O” font. This will allow consumers to identify 2. See http://www.google.com/doodles. mark, and the rounded “O” mark was boxy the source of the services or products when 3. See https://www.google.com/doodles/30th-anni- whereas the angular “O” mark looked like viewing the variation of the mark, avoiding versary-of-pac-man. 4. See http://corp.aol.com/category/our-mission/. the outline of a lemon); Brookfield, 174 consumer confusion and weakening of the 5. See http://www.google.com/permissions/trade- F.3d at 1049 (“MOVIEBUFF.COM” could original mark. mark/rules.html.

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