You’re typing, and you stop for a moment to pick your soda can. It’s chilled, and the caffeine is just what you needed. Before you know it your soda can, complete with it’s internationally recognized brand name, morphs from the reality of your tabletop into the fictional hands of your character.
And just that quick you’ve made an unconscious decision to enter into a legal grey area.
Why? Because (if we’re thinking of the same soda can) that product’s name is trademarked by a multibillion dollar conglomerate who pays millions of dollars in advertising and legal fees to control that can’s image.
Before you hit the delete key, let’s talk!
Under normal situations using that soda and it’s well-known name would be of no consideration to anyone. It all depends on how you’re going to use it. There are ways an author can overstep the line. In which case the company’s well-respected legal team could come crashing down on you. Since I’m betting most authors want to sidestep such unpleasantness here are a few things to keep in mind.
Disclaimer: I’m not an attorney. My interest in this subject started out as personal. I wanted to understand this issue for use within my own work. All my research focused on United States laws, because that’s were I am. You should explore the laws in your home country and/or talk to legal counsel before you tangle with trademark infringement.
Stop and think.
Do you really need that product’s name? Chances are you don’t, a can of cola or a glass of diet soda conveys all the information your reader needs. The same could be said for countless other items. Just because a single brand name is prevalent doesn’t mean the generic name isn’t suitable. Dish soap, yogurt or a laptop are all self-explanatory items, everyone knows what they are without a brand name to clarify. As you review your work for product names, be aware of how many trademarked names the public treats as generic names. Case in point, a zipper is no longer in trademark consideration, but a Zippo still is. You might want to use the term lighter instead. Watch out for Band-aid, Popsicle, and Post-It – these are all brand names we tend to think of in generic terms. Don’t make this mistake because it can cost you. It’s call “trademark dilution” and some companies find it very annoying. You can mitigate your chance of a legal action by always capitalizing brand names.
Second, if you feel you must include the product’s trademarked brand name, view how you’re including the product from the manufacture’s perspective.
Is your book portraying the product, the company or any of its senior staff in a disreputable light? Could someone argue you’re doing damage to the brand name or the company reputation with your usage? Are you using the product’s name as part of an appeal for a competitor’s product? Are you using the product in the depiction of a criminal act, or in a way that could be misconstrued as the manufacture’s endorsement of a crime? If you’re answering yes to any of these questions, you could be opening yourself up for a trademark tarnishment and/or a trademark deformation lawsuit. These are both serous legal entanglements and you should stop and rethink your position and/or seek professional feedback before going to print. If your storyline must vilify product, use common sense and make up the company and product names. Also don’t model your fictional company too closely on any real company, as this could still land you in hot water.
Third, don’t let what you’ve seen other authors do mislead you.
Companies pay authors for product placement. This could be a whole book written to promote the full range of the company’s products, or to create a better public image for the company, or for the author the mention a single iconic item, like a car in their novel. When you see books that feature trademarked names in the title, and photos or logos of the items on the covers, you can bet legal paperwork and likely a check changed hands between these two parties. You should never use protected product names in a book’s title or on a cover without first doing your research and checking with a lawyer.
As I mention above, the chances are no one cares if your protagonist powers down a name brand soda, or flips on a famous label phone, or dons a logo enhanced shoe. But don’t create a whole world built around the evils of an iconic brand and expect the parent company to think it’s an original and inspired idea.
If you want to learn more about mentioning trademarked brands in fiction: