Responsive Marks – Great Concept – Challenges Trade-Mark Thinking
The Whitney Museum of American Art in New York recently unveiled a simple, clever logo using a responsive “W”. A Wired article says “… the spindly zigzag design has been both praised for its modernity and criticized for its simplicity.”
Responsive design websites automatically adapt their configuration to the screen size you see it on. In the responsive W logo, the Museum changes the shape of the W to fit their use. To appreciate the cleverness and utility of this, look at the above video, the slideshow on the Wired article, and the designer’s explanation of the design.
As brilliant and useful as it is, it is an example of cutting edge thinking challenging current legal doctrine. Trade-marks lose protection when they stray very far off the version that is registered. That’s why, for example, if there is a vertical and a horizontal version of a trade-mark, both versions are usually registered. To protect a responsive mark like this, one would obviously register the main form. But it would also cause some reflection as to how far that protection extends to an infinite number of responsive versions, and how best to try to protect those.
Fascinating! How do you register a mark when its distinctiveness comes from the way it changes in execution? Your trademark application almost ends up looking like patent claims where you try to describe the mark as a range of embodiments and incorporate its dynamic nature. Or do you boil it down to a Platonic ideal: “it may be many things depending on these factors but it will consistently be this”.
Or do you stop overthinking it, trademark the WHITNEY wordmark and hope for the best? :o)