As the title asks. To what extent can you use actual brand names in writing without getting into legal trouble? Could you say that a character listens to his "ipod" or must you just say mp3 player? Are simple mentions of actual, real world brands ok? Likewise, could you have a character who is a major fan of a real world book or television or movie series or even a real world band make references to it/them and be described as wearing clothing items related to it/them? Or would such mentions of real world brands be problematic? In short, I want to know if real world brands can be used in a story and if so, where the line is between acceptable and not acceptable uses of them? If you have information on this I would be grateful if you could share.
A few different things to consider, and I only have a moment so I'll keep this brief: 1) Yes, in general using a trademark in the text of a work of fiction is fine. It's not the sort of use that typically gives rise to trademark infringement. I'd keep it out of the title. 2) If a trademark owner decides your use is a problem and decides to come after you, it's going to cost you a lot of money to defend the lawsuit, even if you ultimately win. 3) The more disparaging you are, or the more you cast the trademark in a bad light, the more likely you are that a trademark owner will take issue. Again, just because you cast a trademark in a bad light doesn't mean you're infringing the mark or tarnishing it, but again prevailing in court is an expensive proposition. There is no bright-line rule on these sorts of issues. *The above pertains to U.S. law. If you're somewhere else, the law may be different.
For all the reasons Steerpike already mentioned, I try to substitute if possible. Only if it sounds lame, I'll replace it with a brand name. And definitely stay away from criticising it. For example, if for some reason I wanted to write that a glass of Coke can dissolve a tooth overnight, I'll use 'cola' instead because it's non-specific.
I come across of alot of different brand names from electronics iPod/phone, Accer android tablets, Kindle or Kobo to popular drinks Pepsi, Coca Cola, Corona, Jack Daniels to clothes and sports gear Nike shorts shoes, Nordstrom Henley's or West 49 beanies in my YA/NA reads even in erotica. This type of marketing is free to the trademark and can boost merchandise awarness. I've even seen the name of a competing novel weaved in a plot line of a book. It was brilliantly done and I'm sure the author of the competing book only saw this as more promotion for her own work. MC's and antagonist alike often mention they're obsession with xx television series even to the point of describing in great detail the season final cliff hanger or organize X-Box Halo tourney or Wii Mario Cart blow outs. So, I guess what I am tring to say is that it all depends on how you include the brand names in your writing. Best of luck.
Ok, I've gotten the answers I need, for the most part. However, I find it funny that you said antagonists mention their favored TV shows, games etc..While an hero mentioning such a thing would probably be seen as a boon by companies, an antagonist character mentioning seems like it would fall into the "bashing the brand" territory and could draw the ire some pretty big companies. I mean, even if the murderer or school bully dosen't cite said show, game, etc as their reason for being a killer or bully, it is quite easy for a company, or indeed people in general to believe you are trying to say that the show, game etc..referenced by the character causes people to be murderers or bullies, or is something that a murderer or bully would enjoy, both of which would fit pretty well with the whole "slandering the brand" thing even if that was not your intent. Thus, I would be interested in knowing how, exactly, did those works get away with doing that? Where their "antagonists" just generally nice/good people that where for some reason pit against the hero such as being on rival sports teams or some non-morally charged form of conflict like that? Or, if they where a actually antagonists who where not nice/good, was there a good character in the story who also was obsessed with the same show, game etc..? I am just wondering because when you said antagonists can do it too that made me think of all the potential pitfalls with having your villain, even if they are just your typical HS bully in YA, be obsessed with a certain book, show, game etc.. and makes me wonder how those works got around them.(Assuming you where post was based off of things found in actual works.)
@Crimson Dragon that's not really "getting away with" anything. That's going to be a very difficult case for the company to win. So unless the company is just interested in making your life miserable or trying to cause you to spend so much money defending the claim that you give up, there's not a great deal of incentive for most companies to pursue a writer in a case like you outlined. There are also First Amendment considerations in the U.S.
The reality is that most companies couldn't care less what fiction authors say about them. If Stephen King started writing books where his characters kept having awful experiences in Hilton's then he would probably get a letter from them, most other writers aren't going to register unless you are blatantly disparaging or mis representing them. I have read quite a lot of self pub stuff where the authors have been very scathing about some big brand names. I probably wouldn't myself but I am super paranoid.
I don't know much from writing but in all the reading I've done, I've noticed many mentions of trademarks and brand names. Neil Gaiman once posted updates on his blog of the back-and-forth between him and his editor and one of the things he mentioned was the odd things the editor sometimes wanted to capitalize; one of those "this needs to be capitalized" moments was the word Dumpster... because apparently Dumpster is a brand name. There are quite a lot of brand names that are like that, they've just entered the common vernacular to the point that they get used as the names of the objects themselves rather than just a particular brand. Like Kleenex, Qtips, Band-Aids, those are all brand names but they get used as if that's just what those objects are called. Most brands have a fairly relaxed view of their use in fiction because of this. Also, it's free advertizing for them. Naming books or authors I'm less sure about. From the few conversations I've had with well-known authors, it seems quite a few consider being name dropped to be a compliment (depending on the context of the name dropping). And if you're mentioning one of their books, well, again free advertizing but asking them may be advisable.
A self-pubbed writer probably won't draw much attention unless (s)he achieves a fairly wide distribution. As @Steerpike says, it's not a bright line area. However, please keep in mind that Steerpike has professional knowledge in this area and I find the advice he gives on such matters is sound.
It is true that this happens to many brand names, but it is not true that trademark owners have a relaxed view because of this. Having your brand name become generic for the item with which it is associated is a sure way to lose the trademark. Trademark owners absolutely hate when their brand names are used in that way. They go so far as to put advertisements in magazines like Writer's Digest asking writers not to use their marks as generic terms, because they don't want to lose the trademark. You can't have a trademark on a generic term for the goods and services it relates to.
i second ed's advice re steerpike's advice... the eminent sp is our unofficial, but reliable in-house legal eagle...
Well, yes, this was actually what I was trying to point out. I'm sorry if that wasn't clear. When you're writing and use a trademarked name, it has to be capitalized like any other proper noun. Essentially, in writing, it's not really possible to use a trademarked name to mean a generic item. If I write "Jake hated the crowds on the bus and often listened to his iPod so he wouldn't have to pay attention to the chaos." there is no possible way for me to be describing a generic mp3 player; the brand is properly capitalized, ergo, I mean exactly that item.
They're so much a part of modern life that, if you want an element of realistic grit to your stories, it's almost compulsory to reference the big names now and again. I almost always complement the company in some way (once or twice in the book, that is, not every time they're mentioned), and try to avoid having a disagreeable character use named products. Before I publish I intend to go through them to flag up anything that could create legal difficulties, and of course will likely do the same with the editor/publisher when it comes to the crunch.
You might also consider the possibility that mentioning product brand names too often may annoy many of your readers, including me. I recently read a novel by one of the 'big names' in thriller fiction, and he had his characters going to Dunkin' Donuts at least half-a-dozen times. It started to feel like somke sort of paid product placement and tended to pull me out of the story. I'm hard-pressed to think of a situation where knowing the brand name of a product adds to the reader's experience.
another potential problem is using brand names that aren't ubiquitous and may be long-gone by the time your book is out on the shelves, or years down the road when you would like it to still be read/enjoyed, so the readers won't have a clue about what you're referring to...
