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Friday, July 13, 2007

Using Trademarked Terms in Fiction

A question that arises quite regularly on my forum is whether it's OK for writers to use trademarked terms in novels and short stories. In this topic posted the other day a member wanted to know if it would be OK to use the term Frisbee in her novel.

Meaning no disrespect to forum members, I have to say it's absurd to suggest that writers can never use trademarked terms. If that was the case, spies could never drive Aston Martins - they would have to use sports convertibles. And you could never have your hero popping into his local Macdonalds - it would have to be the Happy Burger Emporium, or some other made-up name.

Of course, I'm no lawyer. But if you look at some publishers' guidelines, you can gauge their views on the matter. To begin, here's a quote from the guidelines of Pearson Education:

"Use of a trademark in the text of a book that discusses or describes the product sold under the mark is considered a form of fair use and permission is not required."

And here's a quote from the University of Colorado Style Guide:

"Many words and names are legally trademarked and should appear with initial capitals to acknowledge that fact. Also owners of such trademarks have a legal right to restrict the use of those trademarked terms to their specific product. As a result, avoid using trademarked names, like Kleenex and Xerox, as generic terms. Instead, use facial tissue and photocopier, unless you intend to refer to the trademarked brand name. A good dictionary will tell you whether commonly used words are trademarked and will also indicate if a trademarked term should be capitalized."

As these quotes indicate, there is generally no objection to using a trademarked term to describe an item in your book. You would need to give it an initial capital, and not use the term generically (e.g. in the case of Frisbee, mentioned earlier, as though it describes any flying plastic disk). As the first of the quotes above states, simply using a trademarked term descriptively in this way is regarded legally as "fair use".

Of course, if you are speaking disparagingly about a particular product or service, you may need to take care that you do not fall foul of the libel laws. However, in most instances that is unlikely, and if you do need to describe a badly designed product (say) in your novel, it might be prudent to give it an imaginary name or keep the manufacturer vague. Even so, a novel is quite different from a non-fiction book. If it is essential to your artistic vision for your hero to suffer a bout of food poisoning after visiting his local Macdonalds, you should not be afraid of writing it this way.

This matter of trademarks seems to worry many new authors, but in my view it's really not such a big deal. I can't think of a single actual case where an author has been prosecuted just for using a trademarked term. Bear in mind, too, that publishers have editors and legal departments whose job it is to worry about these matters. If they think there is a serious concern with what you have written, they will tell you (and ask for changes). And in the highly unlikely event that the company in question decides to sue, they will target the publisher rather than the author (they know most authors don't have any money!).

As writers, I believe it's important that we portray the world as realistically as possible. Part of that involves giving sharp, precise descriptions, and using trademarked terms is sometimes necessary to achieve this. As long as it is done in that spirit and the basic guidelines I have mentioned above are followed, I think it is highly unlikely you will encounter any problems.

Finally, if you want an example of a novel where the author uses trademarked terms with total abandon, take a look at Jennifer Government by the Australian author Max Barry. In this satirical, dystopian science fiction novel, the world is in the control of large corporations such as Adidas, and workers take on the surnames of the company that employs them. One of the key characters in the book, Hack Nike, is told by his employer that as part of his job he must shoot a number of teenagers, to generate hysterical news coverage about the company's new line of trainers.

OK, I am still faintly amazed that Barry and his publishers got away with this, but he has a nice disclaimer at the start of the book which concludes, "Any resemblance to actual people is coincidental and the use of real company and product names is for literary effect only and definitely without permission." So that's all right then!

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Blogger Amanda said...

First, nice blog. It is very interesting. I was wondering if you had heard of this or could provide any insight - I run a blog ( which basically documents different products and places that intentionally misspell their name or trademark. I.E. Cheez-Its. We were thinking of making a short book that basically chronicled hundreds of these products, places, and brands/companies. 95% of the photographs were taken by myself or my partner. The other 5% could easily be taken by us, but were stock photography, usually because a photo didn't come out.

Do you think it's ridiculous to even consider this? Or are we looking at infringing on copyright and trademarks - or might it be considered fair use and produced as "commentary" on a social phenomenon? What do you think? If you have the time, I'd love to hear your opinion. Thanks Nick

Amanda Bruce

6:39 PM  
Blogger Nick said...

I'm not a lawyer, but as a writer I'd say go for it. It's a nice idea, and quite original as far as I know. You won't be using the trademarks for "passing off" (i.e. pretending to be the business concerned, to steal their trade), which is what trademark legislation is basically about. And I think you can quite legitimately claim 'fair use' as far as copyright is concerned. In any event, it seems unlikely that the businesses will object to a bit of free publicity. Just my opinion, of course!

8:48 PM  

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