1. starkweather
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    starkweather Member

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    Mentioning brand names, films and books in a story

    Discussion in 'General Writing' started by starkweather, Aug 30, 2008.

    Hi

    I understand it's generally better to avoid mentioning brand names, such as saying a "pint of Beer" instead of a "pint of Carling" in a book. It saves the editor at a potential publishers a lot of grief, correct?

    But, is it okay to mention novels and films in a book? Can I say things like, "I spot a guy in the corner, sipping tea, reading a copy of 1984 by George Orwell."

    Sorry if it's a dumb question.
     
  2. Scattercat
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    Scattercat Active Member

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    Under there.
    Really, unless you're disparaging the brand, there's nothing to stop you from mentioning them by name. Even then, you have to get pretty popular before it's worth anyone's time to bother you about things.

    It's only a problem if you're making money off of a copyrighted name or image, or if you're obviously saying libelous things. Having a character order "a Big Mac and a Coke" isn't going to get anyone's panties in a bunch.
     
  3. starkweather
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    starkweather Member

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    Thanks for putting me at ease.
     
  4. Leo
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    Leo Senior Member

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    It's almost like free advertising for the brand, when you think about it.
     
  5. Rei
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    Rei Contributing Member Contributor

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    Yeah, if I were an business owner, I would feel the way Leo does about it. Though I do know one writer than messed something up by mentioning business names. He has a bunch of stories set in a city he invented. His books are equaly popular in Canada and America. This city is supposed to look like a city in either country. Then he mentioned two national chains that we don't have in Canada, at least not by the same name. Kind of killed the image of it being Canadian for me.
     
  6. starkweather
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    starkweather Member

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    I'm taking this on board. I've heard some people mention the importance of brands because their character(s) are perhaps materialistic and must have certain brands of clothing, coffee, electrical appliances, etc. Also, reading American Psycho by Bret Easton Ellis, it has occurred to me that it would be extremely time consuming to go around each and every one of those branded companies to seek permission.
     
  7. mammamaia
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    mammamaia nit-picker-in-chief Contributor

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    of course you can!... but you can't quote lines from copyright protected material without permission... for the rules on that and for anything regarding brand names, et al., don't ask here... go to the official source: www.uspto.gov
     
  8. Cogito
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    Cogito Former Mod, Retired Supporter Contributor

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    One problem you can run into is that your innocent use of a brand name can date your story, That may or may not be a problem. If your story is intended to be set in the 1990s, going to the fridge and grabbing a couple Zimas is fine. But if you had written it in the 1990s and intended it to read as contemporarfy even in a decade or two, it might leave a reader scratching his or her head.

    On the other hand, some brand names are durable enough to be practically iconic. A bottle of Coke or a pack of Marlboros have been aroumd a long time, and aren't likely to drop out of favor soon.
     
  9. NaCl
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    NaCl Contributing Member Contributor

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    Good point.

    My youngest daughter was digging through some old boxes stored in my garage. They contained memorabilia from early in my marriage. She came into the kitchen holding an old Princess-style rotary dial telephone and wondered if it still worked. I told her to plug it in and try it. After a few minutes, she announced that it doesn't work anymore, saying that it gets a dial tone but the "buttons" didn't work. As I watched her, she kept pushing "in" on the dial holes where our fingers go for dialing. I laughed and showed her how to "dial" the phone.

    Many, if not most, young adults today have never seen a "dial" phone! In our writing, it could be important for our readers to understand how the dial works because we can't assume they will understand a character's difficulty dialing during a crisis or why a child might have trouble dialing for help.

    As far as using brand names, I would contact the company of choice and ask for their written permission to use their name or the name of their product - like Raisin Bran by Kellogg. Who knows, it might be worth a little money for you in the future if your story sells big and they ask you for an endorsement!
     
  10. Ungood
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    Ungood Contributing Member

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    or wonder why it is called "dialing" when in reality they are just pushing buttons. :D
     
  11. Sparkle
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    Sparkle Member

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    Patricia Scanlan constantly refers to brand names, especially in relation to food. I can't see why anyone would object to free advertising.

    But would I be right in thinking that you can't use lyrics of songs?
     
  12. Banzai
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    Banzai One-time Mod, but on the road to recovery Contributor

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    You need permission to use song lyrics. Which usually means paying royalties, based on how much you use. But the title of a song (or of anything) can be used freely.
     
  13. ParanormalWriter
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    ParanormalWriter Contributing Member

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    I have absolutely no idea about this. Since I'm uncertain, I play it safe and avoid brand names, movie names, etc.
     
  14. mammamaia
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    mammamaia nit-picker-in-chief Contributor

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    i wouldn't advise going to all that trouble... and i doubt a single mention in a novel would justify their wanting an endorsement from a writer... i've been reading books and seeing advertisements for over 6 decades and have never seen that done...
     
  15. thewritestuff
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    thewritestuff New Member

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    I think using brand names etc can really help with the verisimilitude of a setting and perhaps also help to evoke a mood . Also, 'he drank a Carling' is more interesting to read than 'he drank a beer'... I don't really think the use of brand names is as big an issue as people on this thread are making out. I think you will be absolutely fine on the legal front as long as you don't write anything libellous (although I'm not sure what the law is if the statement appears in a work of fiction). Also, is anyone really that worried about their work becoming dated? I'm sure the people of the future won't care if they have no idea what a 'Starbucks' is as long as you tell a good story. There are hundreds of references to things that I have no idea about in Shakespeare and Dickens (and countless other classical authors) and it really doesn't bother me (in fact, I think having to go away and look them up is part of the fun). Also, do you not think it's a tiny bit narcissistic for us to be worrying about our legacies considering most of us haven't even been published... yet!?
     
  16. erader2
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    erader2 Member

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    Mentioning brand names

    What are the rules governing mentioning brand names in a story or book? I started a short story a few days ago (which is quickly turning into a novella) and it just made me curious. I definitely say some negative things about Vienna sausages, should I just make up some different name, like a brand name that only exists in the story world? I already changed Wal-Mart to Mega Mart, because I'm worried about it.
     
  17. Steerpike
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    Steerpike Felis amatus Supporter Contributor

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    You don't really need to worry about it in most instances, erader2.

    Trademark infringement rests on a likelihood of confusion between your use of the mark and the owner's use. That's not likely to occur when using the mark in fiction.

    If you disparage the mark, you can run into some trouble. And both confusion and disparagement (tarnishing) can be easier for a trademark owner to show if the mark is "famous" (e.g. Disney, Coke, etc.).

    If you use the trademarked word in the title, you might have a problem, particularly if the mark is famous.

    But mentioning brand names in a story isn't generally going to pose a problem.
     
  18. mammamaia
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    mammamaia nit-picker-in-chief Contributor

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    there's no law against using a brand name in a title... same freedom/risks apply there as in using it within the text... if you don't say anything bad about it, you're fairly safe from being sued...

    find out for yourself at: www.uspto.gov
     
  19. Steerpike
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    Steerpike Felis amatus Supporter Contributor

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    This isn't necessarily the case, particularly with famous marks. There's no law against it - it's not a criminal issue, it's all a matter of civil law. But if you use a brand name in your title, depending on how it is used, it is easier for the trademark owner to show some of the elements of trademark infringement. There are also other unfair competition claims you could be bringing on yourself. And this is all irrespective of whether you use it in a derogatory manner.

    An easy example would be the Harry Potter brand. If I write a book and entitle it "Harry Potter and the Three-Headed Dragon," but then don't use anything whatsoever from the Potter books (no characters, no setting, nothing that is remotely similar), I would almost certainly be sued by the owner(s) of the Harry Potter brand and likely lose (assuming what I'm doing isn't satire or parody, which is another story).

    Potter probably qualifies as a famous trademark at this point.

    As for being safe from being sued, that's often a question of how litigious the trademark owner is. I've seen plenty of trademark suits filed where the argument for infringement was pretty slim, but the trademark owner had a lot of money and had a policy of heavily enforcing anything that looked remotely like their mark.
     
  20. Steerpike
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    Steerpike Felis amatus Supporter Contributor

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    BTW-

    One case that comes to mind is of a filmmaker who used the brand name DAIRY QUEEN in the title of a film. The movie had nothing to do with the fast-food franchise, fast food in general, or anything remotely related. Nevertheless, the fast-food franchise prevailed in court and the filmmaker had to change the name and destroy a lot of material that already had the infringing name printed on it.

    Another sobering fact:

    Even if you're in the right, trademark litigation is averaging around $100,000 just to get through discovery. If you go all the way through trial, average costs are $300,000 or more (last I looked). That's a cost you bear even if you win, because you're not going to get those fees back from the party who sued you when it is all over.

    So it pays to be thoughtful about the prospect of using a brand name prominently in a way that might attract attention from a trademark owner. Mentioning brand names within the text of a work is generally not going to be a problem, as was noted above. And if you walk through a bookstore you'll be able to find plenty of books that do just that. But you won't find so many that use them in titles (an obvious exception being non-fiction works that have something to do with the trademark or trademark owner at issue).
     
  21. mammamaia
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    mammamaia nit-picker-in-chief Contributor

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    no one here [including myself] is a literary or trademark specializing attorney, so no one should take any of the above as gospel and if in doubt about the risks involved in what they're writing should consult an attorney, not take any advice dished out by the well-intentioned, but less than fully knowledgeable folks here...
     
  22. Steerpike
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    Steerpike Felis amatus Supporter Contributor

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    Actually, that is what I do for a living - patent, trademark, and copyright law. Been doing it for some time now.

    But I agree that no person should rely on advice in an internet forum, even if you have a trademark attorney giving the advice. These cases are always very fact-specific and it pays to consult an attorney personally so that your situation can be reviewed in its entirety.

    I can't stress enough the importance of looking not only at the legal risk, and who is in the right legally, but also looking at the financial cost. I spent the early part of my career at large firms representing publishers, trademark owners, trade associations (MPAA, etc.) - trademark owners who may have a few million dollars budgeted specifically for trademark enforcement.

    I've seen instances where the party that arguably had the stronger legal case (i.e. was in the right in all probability) had to concede and spend thousands of dollars eliminating inventory, etc., because spending $200,000 or $300,000 on trademark litigation would have completely bankrupted them.

    So even if you have a good legal argument, you have to know the trademark owner's proclivities. Some are rabid about enforcing against anything that even comes onto their radar, even if the case for infringement is weak.

    If you're a starting writer and you put a famous brand name in the title of your work, you're taking a risk. That risk is compounded if the trademark owner is particularly aggressive (I had a client once where we sent out over 300 cease and desist letters one week, mostly to individuals who were making little or no money on the use of the mark; but we didn't have a choice in most instances).

    So ... my point in all this is that everyone should be cognizant of the basics of the law in this area, and also cognizant of the amount of money it will cost them to defend a lawsuit.

    And, as you said, people should consult with an attorney who can look at the specifics of their case and given them advice based on their fact scenario.
     
  23. mammamaia
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    mammamaia nit-picker-in-chief Contributor

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    then you're indeed a valuable asset to this site!

    what firm are you with? [not asking to reveal your name, just the firm's, if you're not in private practice]
     
  24. Steerpike
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    Steerpike Felis amatus Supporter Contributor

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    Sent you a PM :)
     
  25. mammamaia
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    mammamaia nit-picker-in-chief Contributor

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    got it... thanks!

    to all:
    despite the goofy name [ :rolleyes: ], this guy is a valuable addition to our site... so treat him right!

    [fyi, the going hourly rate for legal advice from an attorney with his experience runs in the hundreds and you're charged a full hour's fee from the first minute/word! :eek: ]
     

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