1. Jacco
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    Jacco Member

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    What kind of copyright laws are there surrounding actual names of items?

    Discussion in 'General Writing' started by Jacco, Apr 8, 2013.

    I live in the States, if that's important.

    I'm just curious, and I've wondered for a long time now, if you can use actual names of products or brands in your story.

    For instance, instead of saying your character drinks "soda" could you say she drinks Coke or Pepsi?

    Or Perhaps instead of driving a sedan, he drives a Chevy Malibu.

    And perhaps the most important (for a lot of people), instead of a "shotgun," she uses a Benelli, or instead of a pistol, he might use a Glock.


    Anyone have any insight on this? All of the Google searches I've done have turned some conflicting information.
     
  2. chicagoliz
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    chicagoliz Contributing Member Contributor

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    It's not just copyright, but trademark and defamation-based claims, too. Generally, it's fine to use these. Coke would usually be happy you're having your characters enjoy their product. The only potential issue might be if in your story Coke caused people to die or something, where Coke would be portrayed in a very negative light. If your story involved something like this, you'd want to consult a literary attorney.

    Otherwise, it's generally fine to have your character drink a Coke while driving his Chevy Malibu to the gun range to use her Benelli.
     
  3. ChickenFreak
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    ChickenFreak Contributing Member Contributor

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    What you want is trademark law, not copyright law; maybe searching on that will give you more informative results.

    My I-am-not-a-lawyer impression is that you can indeed use brand names, as long as:
    - You don't in any way imply that you are associated with the brand.
    - You don't criticize the brand. That is, criticizing the brand isn't inherently illegal, but false negative assertions could get you sued.

    Another possible issue is what I call the "bigger lawyers" factor. If someone with a multi-million-dollar litigation budget sues you, you can win and still end up bankrupt. So I consider it safer to skirt well around any risk.
     
  4. SwampDog
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    SwampDog Contributing Member

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    You can use what you want, subject to the caveats mentioned. Likely you want to use a trademark as a prop. Go ahead.

    Reading my current book, characters are playing tennis with well-known international pros. They eat at identifiable pizza parlours. Baddies carry Glocks. Drink brands are mentioned. Read any novel and brands will fly off the page.
     
  5. Xatron
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    Xatron Contributing Member

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    As the others said, i believe you can use the name of a trademarked product as long as you don't make it look bad or imply that you are associated with the company. You might want to check said company out before doing so though, since some companies come after you even if you make the product look good. All in all you should consult a literary attorney.

    A character of mine carries a Sig Sauer Mosquito FDE which is referred to by name numerous times.
     
  6. njwh
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    njwh New Member

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    Apparently it's also fine for your character to change gender mid-sentence...
    :p
     
  7. Xatron
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    Xatron Contributing Member

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    Not impossible. Maybe he/she has removable parts.
     
  8. KaTrian
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    KaTrian A foolish little beast. Staff Supporter Contributor

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    You see brands all over novels, so seems it's ok :p
    E.g. Urban Fantasy is very specific about guns.

    It wasn't such awful criticism, but as a Glock fan, I felt oh-so-deeply hurt when James Stark (from Sandman Slim ) said people who use Glocks have daddy-issues and polymer pistols are toys :mad:
     
  9. chicagoliz
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    chicagoliz Contributing Member Contributor

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    Ha ha! Yeah -- mix it up that way. Keep your readers paying attention.
     
  10. thewordsmith
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    thewordsmith Contributing Member Contributor

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    As Chicagoliz and chickenfreak pointed out at the top of the posts, you may, indeed, use proper names of products in your story. 1) If you do use proper names, the owners of those trademarked names are very picky about using them as proper names, i.e. Coke, not coke. Things like aspirin were, once upon a time, proper names of products. The owners of that product naively believed that, people using their name was good for the product. Then, once people began using it in a generic sense and the company failed to contest that relaxed usage, Aspirin became aspirin.

    Rollerblade actually created the term inline skates as a means of protecting their brand name of Rollerblade. Aware that other companies would be creating a similar product once Rollerblade's patent period ran out, they provided a readily accessible generic term for their product to allow others to identify the item and still protect their own trademarked name. And yet, they still found themselves in court over trademark violations, contesting the use of the term Rollerblade. A lower court ruled that the term Rollerblade was an accepted common term. Rollerblade appealed, based on the fact that they had provided the generic term, inline skates, in deference to their trademarked product name, Rollerblade. The lower court ruling was overturned. Such trademark contests pop up in the courts on an infrequent but regular basis. In writers' magazines, in fact, you will frequently see advertisements from commonly used products warning to use them as proper names.

    The other caveat is, as already mentioned, using a trademarked product in a negative light will almost certainly bring down the wrath of the owner's attorneys. To portray a child as being morbidly obese and always eating McDonald's burgers and drinking Pepsi is bound to create a backlash with both companies. But to show a mixed bunch of kids sitting around the restaurant table after school, chowing down on fries and burgers, having a good time, with no spotlight on the kid who is obviously overweight, will likely cause not so much as a hiccup.

    Companies actually like having their products named in movies, tv shows, novels, etc. (They will even go so far as to pay for the privilege in movies and television shows, to have their computer, car, clothing, etc. conspicuously used - product placement.) The movie "E.T." caused a major uptick in sales of Reese's Pieces and corporations learned the value of having their products being recognized in such a venue. I even notice that the ad for the online university at the top of my Writing Forums banner shows a woman using a Mac laptop, the ever so obvious apple evident on the top. (Hmm. I wonder if Mac knows their product is being used in the ad.)

    So, can you use it? Yeah. Just be careful how you use it.
     
  11. mammamaia
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    mammamaia nit-picker-in-chief Contributor

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    it's done all the time... haven't you ever read any fiction that included brand names?...

    as noted above, there's no law against it, but you do have to be careful not to write anything negative about the product/whatever that can get you sued...

    learn what copyright and trade mark laws are and do/don't here:

    www.uspto.gov
    www.copyright.gov
     
  12. psychotick
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    psychotick Contributing Member Contributor

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    Hi,

    I agree with the others, and do go to the link above for the USPTO (Patents and Trademarks) site because there you can do a search for each of the names and find out what is covered specifically.

    Cheers, Greg.
     
  13. chicagoliz
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    chicagoliz Contributing Member Contributor

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    Here's the difference, as far as a trademark issue:

    "Can you hand me a kleenex?"
    "Sure - here you go."

    This would not be okay, as far as Kimberly-Clark is concerned, because they want to keep their name from becoming generic. They'll work pretty hard to keep their trademark. You could say,

    "Can you hand me a Kleenex (R) brand facial tissue?"
    "Sure - here you go."

    That would be okay as far as Kimberly-Clark is concerned. But it sure would seem strange.

    Alternatively, you could do something like:
    "Can you hand me a Kleenex?"
    "Sure - here you go."
    "This is not a Kleenex."
    "What do you mean -- sure it is."
    "No. This is some generic facial tissue. You know I only use Kleenex. Anything else irritates my nose. Or falls apart."
    "I forgot how picky you are."

    That would probably be okay, at least insofar as the trademarked product is concerned. But it takes you somewhere as far as characterization -- maybe it exactly shows something you want to convey about a character, which would be good. But if you don't want to convey that image of the character, then you probably wouldn't want to include a conversation about something so mundane.

    In most cases, you'd probably be best off with:
    "Can you hand me a tissue?"
    "Sure - here you go."
     
  14. mammamaia
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    mammamaia nit-picker-in-chief Contributor

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    what kimberly-clark may prefer is not enforceable in a court of law, liz...

    there's no good reason for not using the 'kleenex' name as a generic term... it's not illegal and you can't be sued for doing so, in writing fiction... same goes for 'a xerox' when referring to a paper copy/copier... or any other brand name... it's done all the time with car brands ['the Jaguar hit the jeep head-on'] and other items...

    what lands one in a heap of legal trouble is using a registered brand name for your own similar product...
     
  15. chicagoliz
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    chicagoliz Contributing Member Contributor

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    They can sue for any unauthorized usage of their trademark, particularly when there is a reasonable chance it will dilute their brand name and therefore reduce the value of the trademark. You're right that it's not "illegal" in the sense of being codified as a criminal act, for which one might be prosecuted and jailed or fined. But Kimberly Clark sure does have the right to protect their registered trademark. (Granted, they'd be unlikely to seek money - just an injunction against genericized usage of their trademark.)
     
  16. Xatron
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    Xatron Contributing Member

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    Unless you make the product look bad, they won't sue you just for using it. Even if they do, on the minor chance that you lose, they still lose more due to bad publicity.
    To sue you, they will have to prove they had loss because of your action. If they go on record claiming that they consider free advertisement a loss, they will most likely invite actual losses.

    By the way Kleenex is already used as a generic term, and even if it was not it would be as mamma said. Unless you use the trademarked name for a product of your own (aka commit fraud) or defame said product in some way, using it in a literary piece is for most intends and purposes safe.
     
  17. chicagoliz
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    chicagoliz Contributing Member Contributor

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    It depends on what their goal is. Defamation or harm to reputation or some such similar claim is different from a trademark claim. Protecting a trademark is not about publicity. It's about protecting their intellectual property -- the brand name of their product. If they're not vigilant about attempting to protect the trademark, it can become genericized (i.e. aspirin), and the company loses something valuable. Again, this is all not really worth worrying much about. As far as a trademark claim, the most they'd do is probably send a letter asking you to stop using the term without trademark attribution. Depending on the usage and context, and how big a market the story is (i.e. on some obscure blog, versus a film released by a big Hollywood studio (and in that case, they've worked out a process for all these things, anyway), the company might not even bother.

    Not all legal actions involve solely the seeking of money damages. Sometimes there is a particular action a party is seeking to prevent or stop because the harm is in some sense, irreparable and not amenable to the easy determination of the amount of monetary damage. It was probably not even worth mentioning at all, but it is helpful to be aware of the various types of actions that exist. Trademark and copyright are different things, and not everyone is aware of their differences. For writers, generally, copyright is the more applicable area of law. Defamation is another one, which is again, different from copyright.
     
  18. TLK
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    TLK Active Member

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    Speaking of this being fine, save for any negativity. What would happen if, say, an alien were to drink some Coke and instantly dislike it because it was a weird taste to him (something perfectly understandable, I guess). Do you reckon Coca Cola would have problems with that?
     
  19. funkybassmannick
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    funkybassmannick Contributing Member

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    Regardless of whether or not it's legal, I tend to avoid brand names in my writing. I used to use them a lot, and then thought it was making my writing feel cheap, sometimes comercial-like. I find other things to eat and drink are more interesting. The small, ethiopian coffee shop on the corner is more intimate to the story than Starbucks. In my sci-fi, I like to have futuristic-sounding candybars instead of Snickers.

    There is a time and place for Starbucks and Snickers, of course. If it is legal, just make sure that, if you use do brands, they fit your story better than the generic or the obscure.
     
  20. Xatron
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    Xatron Contributing Member

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    I think they wouldn't protest it as far as it was used in an insignificant manner. You could spin it into "even aliens drink coke even if they don't all like it". If your main character is the alien though, and he takes one sip of Coca Cola and he goes "Bleh, this filthy liquid is disgusting, I wonder how anyone can drink this dogpiss", i believe then they would have problems with that.
     
  21. chicagoliz
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    chicagoliz Contributing Member Contributor

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    There's a difference between what is legally possible and what is the best business decision. Just because they might have a case, it doesn't always mean that it is in their business interest to pursue it. Beyond that, the strength and value of the legal case will depend on a number of factors. My guess is that they'd probably not be able to show a harm to their reputation, and that they would not bother doing anything. But other circumstances and facts may come into play that would change the analysis.
     

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