1. Hazel Eyed Scribe
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    Hazel Eyed Scribe Member

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    How do I reference names of things in my piece?

    Discussion in 'Word Mechanics' started by Hazel Eyed Scribe, Jul 31, 2010.

    I hope I am posting this question in the right spot, guys

    This question probably could answer a bunch of other ones I have but here is my sentence from my story:


    The woman wore gray sweatpants with a hole in one knee and a baggy Disneyland T-shirt knotted in the back.



    Should "Disneyland" be in italics, normal or what? I also want to make sure I can make specific references like this. I've seen other writers do it, even in published pieces, but what is the general rule on this? As writers, are we free to make references to whatever, whoever and where ever we want? I don't want to get sued. =) Thank you!
     
  2. Cogito
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    Cogito Former Mod, Retired Supporter Contributor

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    Disneyland should be in normal text. The titles of books, movies, magazines, and the like get italicized, but not trademarks or other proper nouns.

    You can refer to product names, but be careful not to portray them in a derogatory manner. Your characters can have negative opinions, like wrinkling their noses at the prospect of lunching on a Big Mac. But having them suffer food poisoning from a Quarter Pounder would be risking trouble; analyzing one and discovering it contains armadillo meat would be begging for a lawsuit.
     
  3. BlueWolf
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    BlueWolf Banned

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    I would beg to differ about Trademarks not being italicized; I 'needed' to have Wiffle Bats in my book, and so I contacted their headquarters in Connecticut. After they read all the parts where they are mentioned, they gave me the go-ahead, under the proviso that their registered Trademark must be in italics (which, I had already done, prior to sending it to them) and a mention in the acknowledgements and on the book's website.

    Additionally, I wanted to use the name of McDonald's, too - their website explains what you must do, if this is the case (of any name associated with them). They are one of the most litigious companies around, and their form to fill out is lengthy to say the least. If they do not reply (which means a 'no', by the way), you avoid all mention of them completely - even if a character eats a Big Mac and loves it - they will screw you over, if they should so decide to.
     
  4. Islander
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    Islander Contributing Member Contributor

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    Isn't that more of marketing thing than an English language thing?
     
  5. Cogito
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    Cogito Former Mod, Retired Supporter Contributor

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    This is absolute rubbish. They can dictate the terms only for trademark use in contexts covered by trademark law. That includes any context in which a competing product can be mistaken for their product to the benefit of the competing product. The mention of a food item or a popular toy in a work of fiction would not fall under tradmark law.

    If you want to see an example, read any of Sue Grafton's novels. Her favorite junk food (so described by her!) is a Quarter Pounder with Cheese. She did not need to ask permission or format the name in any special way in order to use it.

    Now, if you wrote an ad copy for a local burger joint. and wish mention MacDonald's food items by way of comparison, you would need to comply with their restrictions. But you absolutely are safe using product names in passing in a work of fiction, as long as you aren't defaming them.
     
  6. BlueWolf
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    BlueWolf Banned

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    Which part is rubbish, may I ask?
    The Trademark italics? or the McDonald's?

    Either way, the company involved said it was a necessity, as it is a trademark, and for McDonald's, I said "they will screw you over, if they should so decide to", not that they definitely will.

    EDIT: I also add this as these are their requirements: http://www.mcdonalds.com/us/en/contact_us/trademark_permission.html
    apologies for an external link, but in the context it is appropriate.
     
  7. Elgaisma
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    Elgaisma Contributing Member Contributor

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    Who wants to be taken to court by someone who can afford to do it properly. Its different if you have the resources of a bestselling author behind you. The lawyer bills alone would make a smaller author's book bankrupt before it began. I know when I researched for museum labels and guidebooks we always checked with the company concerned. When I reference someone in a history report I always play it safe.

    A quarter pounder with cheese is not specific to any company it relates to the weight of the burger. Which might explain why Sue Grafton's character chose it over a Big Mac. However Disney don't appear to have sued someone over the use of their trademark. They are more likely to sue over the use of Mickey Mouse.

    Always play it safe and find out company policy. When at college we got into trouble over a play with Terry Pratchett, we were lucky he let us away with it in exchange for tickets to the play:)

    It is also a courtesy.
     
  8. Wreybies
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    Wreybies The Ops Pops Operations Manager Staff Contest Administrator Supporter Contributor

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    I offer the following link to the OP given that the OP is hailing to us from the sunny state of California within the borders of the sovereign nation known as the United States of America. The laws referenced are applicable to the United States and may not apply to countries other than the aforementioned.

    http://www.publaw.com/fairusetrade.html
     
  9. Cogito
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    Cogito Former Mod, Retired Supporter Contributor

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    Incorrect. She specifically goes for the MacDonald's Quarter Pounder with Cheese, not a generic quarter pounder with cheese. Other times, she does opt for a Big Mac instead, and a Coke. For a change, she has even loaded up at Burger King.

    Trademarks are not controlled in all contexts, only in those that may result in marketing interference.
     
  10. BlueWolf
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    BlueWolf Banned

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    So, Sue Grafton has done it. And?

    Who is to say she did not gain permission (and no acknowledgement is not evidence to this)? Or, indeed, if she didn't, who can say that these companies, passed it off, because she is a big author? Extra advertising, y'see.

    When talking names of things, that are registered, copyrighted, or trademarked, it is always best to err on the side of caution; you really want to see years of hard work go down the drain, because you reckoned it was okay?

    Again, I refer people to this: http://en.wikipedia.org/wiki/Quarter_Pounder wherin it states the following:
    Quarter Pounder" is a trademark in the United States, but outlets in some other countries have been able to use similar names for their own products, such as the British Wimpy chain's "Quarterpounder."

    Confusing, yes? As I said, just do not presume you know the law - ignorance never, ever, is a defense.
     
  11. Elgaisma
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    Elgaisma Contributing Member Contributor

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    Having only ever read the one Sue Grafton I had only your first mention to go by. She has a publisher and lawyers to support her.

    It doesn't change the fact that I would rather cover my back, than be taken to court which will render my book no longer financially viable. All it takes is a quick email or letter to the company concerned.
     
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  12. Cogito
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    Cogito Former Mod, Retired Supporter Contributor

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    That is within the scope of trademark law, and has nothing to do with the reference to a trademarked product in a work of fiction. Further note that the Wimpy chain's Quarterpounder was probaby granted its own trademark based on the single-word spelling together with the fact that the trademarked names are both very close to the generic term quarter pounder. They would never get away trying to trademark a Bigmack sandwich.

    The scope of any given trademark is limited to the scope necessary to insure a competitor in the same market sector is not profiting from or causing damage to a company's registered term.
    I gave Sue Grafton only as an example. The practice is widespread in the publishing industry. Characters smoke Marlboros, drive Mustangs, pop open a Molson's, and so on, endlessly. They do not need permission to do so.

    You are right in one respect. If you don't know the laws, don't take chances, and don't get your information from Internet forums. Check with a literary attorney.

    In the United States, the scope of trademark protection is quite limited.

    By the way, Wikipedia is NOT a reliable sourse of information, and should not be cited as a reference/
     
  13. Steerpike
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    Steerpike Felis amatus Supporter Contributor

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    You can use those trademarks in fiction without having to worry about italicizing them, using the TM or (R) symbol, or otherwise indicating they are trademarks. If you ask the companies, of course they are going to tell you have you have to do something like italicize, but the fact is for this kind of use you don't need their permission in the first place.
     
  14. BlueWolf
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    BlueWolf Banned

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    Sorry, but not true. Not one little bit.

    As I have said, I used Wiffle Ball's name, and here is what they say on their website:

    As with any business, there are legal issues that we’d rather not have to address, however, they cannot be ignored. Please be advised that "WIFFLE" and all images contained herein are either copyrights or trademarks of The Wiffle Ball, Inc. Their use, for any purpose, is forbidden unless you’ve obtained express written consent from The Wiffle Ball, Inc. to do so. Additionally, all content, particularly The Rules of the Game, is copyrighted material.
     
  15. Steerpike
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    Steerpike Felis amatus Supporter Contributor

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    Sorry BlueWolf, you are absolutely wrong

    The mere fact that the company says it on their web site is meaningless. Any trademark owner is going to say that, and they're going to tell you that if asked.

    But it isn't true. You not only don't need their permission to use a mark in a work of fiction as is being discussed in this thread, you don't have to italicize it or mark it either.
     
  16. Steerpike
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    Steerpike Felis amatus Supporter Contributor

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    Before I go, let me suggest looking at it a bit more closely.

    What is the trademark owner going to allege if you use their mark? Infringement? Well, that requires a likelihood of confusion as to the origin of goods and services, or some kind of affiliation with the mark. Not going to happen here. No one is going to be confused that McDonald's is behind James Patterson's novels if he mentions a McDonalds in his story.

    So you don't have confusion. Further, this sort of nominative use of a mark doesn't even rise to the level of using the "mark" as a trademark.

    What else could they allege? Dilution of some kind? Not likely at all. And then you've got the whole first amendment issue in the U.S., which comes down on the side of the author as well.

    No, it isn't a problem.

    Any trademark owner is going to tell you it is. They almost have to, under their duty to police their marks. But you can use trademarks in this way if you like.
     
  17. BlueWolf
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    BlueWolf Banned

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    Then we shall agree to disagree, and I can at least know that I will definitely not get sued under any circumstances.

    (I will say this though, if you used part of my book in my book - not you 'you', the general 'you' - I would sue you for everything you had.)
     
  18. Steerpike
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    Steerpike Felis amatus Supporter Contributor

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    If I used part of your book that would be copyright infringement. We are talking about trademarks. Completely different.
     
  19. Wreybies
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    Wreybies The Ops Pops Operations Manager Staff Contest Administrator Supporter Contributor

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    And this conversation needs to cool off.

    Now.
     
  20. BlueWolf
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    BlueWolf Banned

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    And I meant, anything - if you used 'Smith' or any name from it, or the website, and I knew what you were doing (and could prove it), I would sue.
     
  21. BlueWolf
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    BlueWolf Banned

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    True. Too, true.
     
  22. Steerpike
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    Steerpike Felis amatus Supporter Contributor

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    I think we can keep it on an even keel. You want to sue when you have a colorable claim; a chance to win. If someone excerpted your book in a commercial work you'd be in the right.

    But you can't stop anyone referring to your book by title, or using any other trademark associated with it in the manner discussed here. At least not in the US. So suing would be throwing away money.
     
  23. BlueWolf
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    BlueWolf Banned

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    Hence the 'prove it' part.

    It would seem that many believe that they know best (and I throw myself in that cauldron, too), but seeing as though there have been no copyright and trademark lawyers responding to this, I guess, as said, we can all agree to disagree, and do what we think is best, and hope all turns out well.
     
  24. Hazel Eyed Scribe
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    Hazel Eyed Scribe Member

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    After reading this thread... I am sorry I asked. I will play it safe and just omit it. Thanks for clearing some stuff up though, guys. Though, I'm still a little unsure since the conversation became more about burgers LOL. :) Anyways, it probably is a case by case issue anyway, huh?
     
  25. Cogito
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    Cogito Former Mod, Retired Supporter Contributor

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    Or, you could actually do the work to find out.

    For example, this is a webpage by an online service that answers questions about publishing laws: The Publishing Law Center: Fair Use of Trademarks. The author of the article. Lloyd L. Rich is a literary attorney in Denver, Colorado*, so I will consider him a reasonably reliable source for US trademark law.

    I'll quote two relevant paragraphs, and offer the link if you wish to read te entire article:
    It took only a few minutes to find several knowledgeable articles on the subject with a simple google search. They all say essentially the same thing.

    So we can agree to disagree, but we can also look for actual meaningful information.

    * Listed in the FindLaw referral service
    Hazel Eyed Scribe, it's a good question, and has been asked before. There was just more noise than usual this time. It's information every writer should know, and the myths needed busting.
     

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