1. Helga Rune
    Offline

    Helga Rune New Member

    Joined:
    Dec 16, 2015
    Messages:
    6
    Likes Received:
    2

    Trade marks

    Discussion in 'General Writing' started by Helga Rune, Aug 11, 2016.

    Hi everyone, as I'm still wet behind the ears could someone inform me if mentioning a product and or company in a book (Heinz, Benecol, etc) needs any special attention. I've been doing a bit of amateur proof reading for a friend and I noticed she used the phrase 'It's a Heinz 57' her character was referring to a dog he'd just bought when asked the bread. This was I believe a slogan that Heinz used to promote their 57 Varieties. Further on in the book, the above character ask a work colleague 'How's the old cholesterol battle going then?' The colleague replies 'Drinking Benecol by the gallon!'

    All help much appreciated.

    HR.
     
  2. Steerpike
    Offline

    Steerpike Felis amatus Supporter Contributor

    Joined:
    Jul 5, 2010
    Messages:
    11,098
    Likes Received:
    5,311
    Location:
    California, US
    Typically, not a problem. You're not using the reference as a trademark. If it was in your title, then you've got more of a concern. It also pays to look at how you're using the reference. If you're using it in a way that might be considered defamatory, that could raise the ire of the trademark owner. That doesn't mean that even a negative usage isn't protected - it may be. But a trademark owner who takes offense may decide to take legal action, and even if you're in the right and end up winning it is costly and can make your life miserable.
     
  3. Sack-a-Doo!
    Offline

    Sack-a-Doo! Contributing Member Contributor

    Joined:
    Jun 7, 2015
    Messages:
    2,231
    Likes Received:
    1,511
    Location:
    [unspecified]
    Perhaps the oldest battle waged on this front was with Kleenex. Authors who spelled it with a small 'k' got into trouble because it's a brand name and they were using it as if it were a generic word, a synonym for 'tissue.' A similar uproar ensued over 'Xerox' and 'xerox' (the generic term is 'photocopier.')
     
  4. Steerpike
    Offline

    Steerpike Felis amatus Supporter Contributor

    Joined:
    Jul 5, 2010
    Messages:
    11,098
    Likes Received:
    5,311
    Location:
    California, US
    Trademark owners advertise to authors to use their marks properly. Did the owners of Kleenex take legal action ?
     
  5. KevinMcCormack
    Offline

    KevinMcCormack Member

    Joined:
    Aug 12, 2014
    Messages:
    74
    Likes Received:
    29
    There's no problem in the USA with using brands in fiction. Stephen King is notable for doing this, and I think he inspired the creation of a term for it among critics - something like "branded fiction" ? (somebody on the site here will probably know the exact term).

    It really does improve the sense of realism in a novel.

    Even the creation of a fictional brand has an effect - William Gibson invented a computer manufacturer called SandBenders for his cyberpunk novels, which characters responded to as if it was a sign of elitism to own one.
     
  6. Steerpike
    Offline

    Steerpike Felis amatus Supporter Contributor

    Joined:
    Jul 5, 2010
    Messages:
    11,098
    Likes Received:
    5,311
    Location:
    California, US
    This is certainly an over-simplification. There are potential problems. Not infringement, generally, but potential issues around tarnishment (for famous marks) or around defaming or casting the trademark (and by extension, the associated entity), in a bad light. If nothing else, it's a problem if the trademark owner thinks it is and is willing to take action.

    What you'll see in some cases are authors who use real brand names neutrally throughout a work, but when it comes time to create an entity that will be cast in a negative light, they'll use a fictitious entity to serve that role.
     
  7. JLT
    Offline

    JLT Active Member

    Joined:
    Mar 6, 2016
    Messages:
    248
    Likes Received:
    212
    I'm not a lawyer, but ...

    I don't think you'd have a problem if you just dropped it in passing, like the "Heinz 57" allusion. If, on the other hand, you put an emphasis on one brand to the exclusion of others, and made mentioning that brand an integral component of your work, the people who own that brand might get interested, particularly if the product is used in a negative way, as The Other Black Cat Avatar said.

    I've never heard of a company coming down hard on a fleeting reference. It's only when you use the trademarks (such as anything in the Star Trek universe) in a way that your work might be mis-identified as a product of the brand holder, or when the brand holder thinks that your treatment is costing them dollars, that they roll out the big guns.

    But I may be wrong. Has anybody heard of a successful prosecution of a brand infringement where the reference was fleeting?
     
  8. Sack-a-Doo!
    Offline

    Sack-a-Doo! Contributing Member Contributor

    Joined:
    Jun 7, 2015
    Messages:
    2,231
    Likes Received:
    1,511
    Location:
    [unspecified]
    I don't remember, but I'm sure it's somewhere in the public record, likely Googleable.
     
  9. Steerpike
    Offline

    Steerpike Felis amatus Supporter Contributor

    Joined:
    Jul 5, 2010
    Messages:
    11,098
    Likes Received:
    5,311
    Location:
    California, US

    I looked briefly before I asked and didn't see it. By the way, Google is another company that hates people using its mark generically like you just did :)
     
    Sack-a-Doo! likes this.
  10. deadrats
    Offline

    deadrats Active Member

    Joined:
    Jul 7, 2016
    Messages:
    640
    Likes Received:
    293
    I agree with this. It really isn't a problem to use name brands in fiction. And for those of us who read a lot of fiction, we see it all the time.
     
  11. Sack-a-Doo!
    Offline

    Sack-a-Doo! Contributing Member Contributor

    Joined:
    Jun 7, 2015
    Messages:
    2,231
    Likes Received:
    1,511
    Location:
    [unspecified]
    Yup! But they're a big corporation and I'm just this little writer-guy in one of the most overlooked countries in the world. If they sue me, they'll be picking on the little guy in the little country (sort of a matryoshka of bullying) and just end up making themselves look bad.

    Besides, it's fun to look for new ways to turn 'Google' into a noun, a verb, an adjective... and I always capitalize it.

    Also, I just said it shouldn't be done. At no time did I say I don't partake. ;)
     
    Steerpike likes this.
  12. Steerpike
    Offline

    Steerpike Felis amatus Supporter Contributor

    Joined:
    Jul 5, 2010
    Messages:
    11,098
    Likes Received:
    5,311
    Location:
    California, US
    @Sack-a-Doo! I could envision a cause of action for causing genericism, I just haven't come across it. Could well be something out there. Also, maybe that it's outside the U.S.

    In any event, there's something to be said for being cautious. I've had cases where the person being sued or threatened by a large entity for trademark infringement or a related cause of action would almost certainly have won, but they couldn't afford to fight. In some cases they spend thousands before they can even get it settled. So in part it depends on your level of risk adversity.

    As you can see from above, forums tend to be full of bad legal advice. The points raised here set forth some basics. People can look into them further. If you're going with a traditional publisher, they should handle this stuff anyway. Depending on the specific use they may ask you to change something or they may allow it to go through.
     
  13. Steerpike
    Offline

    Steerpike Felis amatus Supporter Contributor

    Joined:
    Jul 5, 2010
    Messages:
    11,098
    Likes Received:
    5,311
    Location:
    California, US
    Someone sent me a link on this, since I'm giving a talk that covers this next month. It's a pretty good overview for more info:

    http://www.rightsofwriters.com/2010/12/can-i-mention-brand-name-products-in-my.html

    The bit on blurring is not likely to be a significant issue for fiction writers, imo, but it can't hurt to know more about this area. Dilution, broadly, is a federal statutory cause of action in the U.S. It breaks down into blurring and tarnishment. The latter is of most interest to writers, assuming you're not using the marks in an infringing manner, like using certain marks in your book title, advertising, &c.
     
  14. Sack-a-Doo!
    Offline

    Sack-a-Doo! Contributing Member Contributor

    Joined:
    Jun 7, 2015
    Messages:
    2,231
    Likes Received:
    1,511
    Location:
    [unspecified]
    Yeah, I'd likely get my ass handed to me in a suit.

    But I'm just being factious on here. I'd never commit a brand name to prose with the intention of publishing without due diligence in the caution department.
     
  15. Steerpike
    Offline

    Steerpike Felis amatus Supporter Contributor

    Joined:
    Jul 5, 2010
    Messages:
    11,098
    Likes Received:
    5,311
    Location:
    California, US
    I use them in one work, just not generically or in a way that could be considered defamatory. If you have a traditional publisher, they may want to clear any problematic uses. The best approach is to simply understand the potential issues so you can make an educated decision. The identity of the trademark owner is also something that should be considered.
     
    Sack-a-Doo! likes this.

Share This Page