Monday, April 4, 2016

Using Trademarks in Fiction


A popular post from December 2010

by Annette Lyon
Writers often wonder whether they're allowed to use trademarks in their work, and if so, how to use them properly?
I'm no lawyer, so everything below is simply my understanding of what I've gleaned from articles on the topic, especially from Writer's Digest. (Don't have a subscription? GET ONE.)
First, Why Do Trademarks Matter?
If a company's trademarked name becomes a common noun, ANYONE can use it in advertising, calling their own product Jell-O or Hershey's or Betty Crocker, because the company's brand has lost its unique meaning tying it to a particular product.
When that happens, it's the kiss of death from a company's standpoint. Consider: If someone says they're wearing a Rolex, that means something. But what if "rolex" became a generic term for any watch? "Rolex" would no longer imply status or quality, and consumers might well forget that a specific company bears the name.
To prevent that kind of thing from happening, companies spend huge amounts of money in an effort to protect their trademarks. Those efforts include running ads begging writers to use trademarks properly, sending cease and desist letters to people/organizations abusing their trademarks, and more.
If a company has a paper trail proving they've worked to protect their trademark, they can sue another company trying to cash-in by unauthorized use of their brand.
As far as writers are concerned, two general rules apply with trademarks, one for non-fiction, and the other for fiction.
Trademarks in Non-fiction
In non-fiction, particularly with works like magazine and newspaper articles, trademarked products should be recognized as such.
Writers can do this two ways:
  • Simply add the trademark symbol after the name (Kleenex®)
  • Use the trademarked name as a name. That means it's capitalized and NOT used in place of a common noun (such as tissue). And include the word "brand" in the description: (Kleenex® brand tissue). Note that while the trademark symbol isn't required here (since you're being pretty clear that the brand is a brand) it can be safer to add the symbol anyway just so there's absolutely no confusion. This keeps the company happy and gives the writer added protection.
More examples (without the symbol, but showing brands as names along with common nouns):
  • Jell-O brand gelatin
  • Levi's brand jeans
  • Rollerblade brand in-line skates.

Trademarks in Fiction
Don't use the trademark symbol in fiction. It just doesn't happen, likely because the symbol would pull a reader out of the story world. Go ahead; use trademark names as much as you like.
Yes, companies still encourage fiction writers to use the generic term with their mark and the word brand, and if it works with your story, fine. But doing so can lead to seriously clunky fiction.
Imagine our hero Joe wearing Levi's brand jeans, riding a Harley-Davidson brand motorcycle and drinking a Coca-cola brand soda.
(Beautiful prose, no? Er . . .)
Rather: Joe wore Levi's, rode a Harley, and drank Coke.

Trying to protect a trademark can be a losing battle (yo-yo used to be a trademark, if you can believe it), and others are losing the fight (think Rollerblade, Chapstick, and Xerox), but if a company can prove that they've put forth the effort to protect their mark, and you didn't use it properly in your non-fiction piece, they can sue you for infringing on it.
They have to; if a company does not try to protect their mark, they have no recourse.

That means Brand Z can call their stuff Jell-O if the term is so common that it's lost brand meaning. If the Jell-O company hasn't gone out of their way to protect their mark, their hands are tied.

Bottom line:
Companies continue to push for proper trademark usage, and writers who work in non-fiction should try to respect the basic trademark rules of the industry.

But if your fictional character has cool wheels, you don't need to call it a Mustang-brand car.

2 comments:

vp chandler said...

Thanks for posting this. I wondered about this. I encounter this problem in the first chapter of my book.

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