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."
Source: http://tinyurl.com/25794v

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."
Source: http://tinyurl.com/2dd5pw

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!

Why You Should Never Rely on a Thesaurus...

I'm grateful to my colleague Karl Moore for drawing my attention to this excellent article by Michael Leddy at Lifehack.org. It's quite short, so I've reproduced it in full.

Reading an essay from a college freshman many years ago, I came across a sentence that baffled me - it referred to "ingesting an orange." I crossed out "ingest," wrote "eat," and wondered why anyone would've written otherwise. At the time, it didn't occur to me that my student had very likely started with "eat," only to cross it out and substitute a word that seemed somehow better - lofty, less plain, more imposing.

Since then I've taught many students who seek to improve their writing by using "better" words. Their revision strategies focus on replacing plain words with big, shiny ones. Such students usually rely on a thesaurus, now more available to a writer than ever before as a tool in many word-processing programs.

But dressing up a piece of prose with thesaurus-words tends not to work well. And here's why: a thesaurus suggests words without explaining nuances of meaning and levels of diction. So if you choose substitute-words from a thesaurus, it's likely that your writing will look as though you've done just that. The thesaurus-words are likely to look odd and awkward, or as a writer relying on Microsoft Word's thesaurus might put it, "extraordinary and uncoordinated." When I see that sort of strange diction in a student's writing and ask whether a thesaurus is involved, the answer, always, is yes.

A thesaurus might be a helpful tool to jog a writer's memory by calling up a familiar word that's just out of reach. But to expand the possibilities of a writer's vocabulary, a collegiate dictionary is a much better choice, offering explanations of the differences in meaning and use among closely related words. Here's just one example: Merriam-Webster's treatment of synonyms for awkward.

What student-writers need to realize is that it's not ornate vocabulary or word-substitution that makes good writing. Clarity, concision, and organization are far more important in engaging and persuading a reader to find merit in what you're saying. If you're tempted to use the thesaurus the next time you're working on an essay, consider what is about to happen to this sentence: "If you're lured to utilize the thesaurus on the subsequent occasion you're toiling on a treatise, mull over what just transpired to this stretch."
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Good advice this for all writers, not just students!

The OED Needs Your Help!

The Oxford English Dictionary is enlisting the public to help them trace 40 well-known words and phrases. All of them are currently in the dictionary with a date of the earliest evidence of usage, but the OED's researchers want to know if anyone can do any better.

The results will feature in a new series of the BBC2 TV show 'Balderdash and Piffle', presented by Victoria Coren. Last year members of the public came up with evidence to update the history of words including ploughman's lunch, the 99 ice-cream, and the full monty. John Simpson, the OED's chief editor, said: 'Wordhunters made some remarkable discoveries in the last series. They found wordhunt words tucked away in football fanzines, LPs, school newspapers - just the sort of sources we can't easily get our hands on.'

The 40 words for which help is being sought this time include some whose origin is still unknown or uncertain, including shaggy dog story, loo, bonkers, Bloody Mary, take the mickey, bung and spiv. The dictionary is also hoping for more information on mucky pup, sick puppy, glamour model, hoodie, shell-suit, stiletto, marital aid, pole dance, and one sandwich short of a picnic. They emphasise that they are seeking documentary evidence for the use of these words and expressions: 'I remember my granny saying...' wouldn't be good enough. More information can be found at www.bbc.co.uk/balderdash.