Tom Clancy used Heckler & Koch firearms in his Rainbow Six novel, and I know I've heard someone say "toss me a Coke" in a book before, but how many authors actually go about asking permission before putting something like that in a story? For example, referring to a car as a 'sedan' over and over again would get pretty boring. But would there be repercussions to naming a specific brand and model (say, a Ford 500), without physically acquiring permission from the manufacturer?

I'm not talking in strict terms of legality here, but ruminating in a more practical sense. What do you see in current, published fiction...what do you see authors 'getting away with,' or the converse?

It just bothered me to no end. If something so pervades a culture (like the aforementioned 'Coke'), how do you come up with another way of describing it without losing the original impact, or slipping completely out of context?

This isn't a really big issue, and I suppose you can write around it often enough without great difficulty, but I just thought I'd see what the rest of you thought.

Inkwell
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"The difference between a writer and someone who says they want to write is merely the width of a postage stamp."
-Anonymous
 

In some cases I won't use brands because it's irrelevant. (I would say "watch" rather than "Timex," because who cares if a watch is a Timex?) But I'll never have a character drink a "cola," because people talk about cola only in ads. If they're from the South, they'll be drinking Coke.
 

Now, if you make slanderous statements about the manufacturer of a trademarked product and label those statements as non-fiction, then the problem isn't trademark infringement but libel. If your "fictional" work is clearly a thin disguise for a libelous attack, then the fact that you call it fiction will not necessarily save you from liability.

But that is true whether or not you use the trademarked term. In other words, there is no connection between the trademark issues and the libel issues.
 

I actually ran into this same problem about M&Ms in my WIP.

[This message has been edited by franc li (edited December 11, 2006).]
 

(I grew up in a town where one of the leading industries involved making Smith Brothers cough drops. Maybe you remember the two brothers, who often went by the names "Trade" and "Mark," 'cause that's the way it was written under their pictures on the jars and boxes (and eventually bags.) If they weren't the first to do this sort of trademarking, they were among the first.)
 

Generally, only living people can be slandered or libeled. Not products, places or things. The only exception I can think of relates to some products in jurisdictions that provide a cause of action for slandering or libeling the local produce. These are specific statutes designed to protect local economies, typically agriculture. For example, Texas, which protects its meat/cattle industry in this way. (Remember a few years ago when Texas cattlemen sued Oprah for making derogatory comments about Texas meat. Oprah won.) But this shouldn't be a problem in a work of fiction. Plus, these laws are still rare and I've never heard of one that is specific to a brand name or trademark.
 

'Hey!' said Billy, 'Toss me a Skaurnacht™.'
Tommy tossed Billy a little, black, salt-water liquorice pellet commonly eaten in holland by little dutch kids in the 1970s, which, of course, is the setting for this story — in case you missed it.
'Mmm. Thanks.' said Billy

perhaps this seems obvious

Of course, if it was set in Nazi Germany it would not be "Hans! Toss me a Coke™. It would be "Hans! Toss me a Fanta™."
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[This message has been edited by hoptoad (edited December 12, 2006).]
 

I suppose "Snickers bar" might be okay. Just plain "Snickers" is not. Now the degree to which one is likely to get into trouble for doing it is a separate question.
 

Now, it becomes a bit of a problem in a future setting if you want to refer to something that you think Mars Inc. might eventually make and call a Snickers. Then it becomes a bit fuzzy, since they might be appalled at the idea of...say, Snickers octopus-flavored tofu. But even with that, you're pretty safe as long as you assert the claim of it being a Snickers is valid on the basis of Mars Inc. deciding it is a Snickers.

You could also write a story in which Mars Inc. has lost the Snickers trademark through some means. As long as you make it perfectly clear what Snickers is "supposed" to mean and distinguish that from the meaning it has gained, you aren't the one violating their trademark. The violation of their trademark is then a fictional event, much like a fictional murder. However, the "supposed" does come into play. If it seems that the intention of your story is that Mars Inc. should lose the Snickers trademark, then your story is an infringement of the Snickers label.

Perfectly okay:

quote:

---

Walter's chewed his Snickers listlessly. "Man, these just haven't tasted the same since Mars Inc. folded."

Riley eyed him for a moment. "That's because you were about six years old. Of course you liked them better when you were a kid."

"No...they really used to taste better. I think those guys at Guixuang did something funny to the recipie."

---

Maybe not so good.

quote:

---

Walters bit into his Snickers with delight. "I'm so glad that blood-sucking capitalist organization lost the power to deprive us of the right to call this bar a Snickers. It tastes so much better now that we have gained the trademark rights."

---

Okay, back to reality. If it's a Snickers bar, then just call it that. If it isn't, then don't. It's really that easy.
 

'Snickers' is simply a 'conspiratorial' in-joke referring to their amusement with their own cleverness.

edit:

see my majesty

[This message has been edited by hoptoad (edited December 13, 2006).]
 

Let's go to the statute that provides a cause of action for trademark infringement:

quote:

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(1) Any person who shall, without the consent of the registrant—

(a) use in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive; or

(b) reproduce, counterfeit, copy or colorably imitate a registered mark and apply such reproduction, counterfeit, copy or colorable imitation to labels, signs, prints, packages, wrappers, receptacles or advertisements intended to be used in commerce upon or in connection with the sale, offering for sale, distribution, or advertising of goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive,

shall be liable in a civil action by the registrant for the remedies hereinafter provided.

---

As I understand it, what it boils down to is that you aren't infringing on someone's trademark if you aren't using the trademark for marketing purposes in a way likely to cause confusion.

So, if you title your book Snickers and have a picture of a Snickers wrapper on the cover, people might be confused into think that your book is some sort of official Snickers publication. That is potentially infringement.

But just using the word "Snickers" inside your book would not be infringing on the trademark, even if you use it for octopus-flavored tofu or as a generic word for candy. You are not using the trademark for the marketing of the book, so it won't confuse people as to the source of what they are buying (which is the fundamental reason for trademark protection).

And even if you are using the word generically because you want Mars, Inc., to lose its trademark, you are not infringing on the trademark because you're not using it for marketing. Mars may write you a letter telling you not to use "Snickers" generically, but that's because they need to demonstrate that they are actively protecting the trademark. It doesn't mean they have a legal claim they can enforce against you.
 

If Mars Inc.'s lawyers can show that your work is mainly an attempt to dilute/attack their trademark, then it can be considered marketing. Admittedly, that can be a very high bar for them to hurdle, unless your story is virtually nothing other than an attack on their trademark which you've self-published rather than selling to a market. But if they can show that your intent is advertising rather than literature, then you're in trouble. So I guess you'd better make sure it's a darn good story
 

[This message has been edited by hoptoad (edited December 15, 2006).]
 

Than again, I had also planned to illustrate that virtually all of the gear strapped to the soldier's body was emblazoned with "Mars."

"Here, Johnny...have a 'Mars' grenade."

"Gee, thanks Mister!" Plink!

But seriously, thanks for clearing that up, everybody. I was also reading Uncle Orson's latest book (Empire), and found references to a PT Cruiser (hah...it seems we both scoff at generic sedan-SUV references!), The O'Reilly Factor, and several other notable brand names, items, and entities.

I feel a bit safer now.

Inkwell
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"The difference between a writer and someone who says they want to write is merely the width of a postage stamp."
-Anonymous
 

Maybe the very badness of the Hershey's Bar as food is what makes it so brandable as a logo for all manner of non-food and non-food-related items. It's like, by seeing that, you brace yourself for your least favorite chocolate, and then you find out that you don't have to eat it after all. So you're not badly disappointed over the lack of edibility, yet you can also trick yourself into thinking that the logo is referring to one of their products that you'd really like.

Or it might be because some of their better products come in a form where they aren't ready to eat and need a non-disposable container, and they sort of took off from there. Or just possibly I'm overthinking this. Maybe people in marketing think that the Hershey's Bar is really their best product.
 

http://www.bioc.rice.edu/~bbeason/misc.html

Constructed in June of 1994, and modified by Sampson Steel Company in 1996, this 20 foot Chocolate "Waterfall" is believed to be the largest of its kind in the world. Using an idea conceived by Alaska Wild Berry Products' owner Peter Eden, Homer artist Mike Sirl designed and built this Chocolate "Waterfall." It contains 3,400 pounds of real liquid chocolate donated by Peter's Chocolate Division of Nestle Foods and Guittard Chocolate Company.

The picture doesn't do it justice. That stack of chocolate bars in the foreground? They are chest high.

 

Sometime I'm going to have to find an excuse to buy another of those ten-pounders. The trick is that you use about one pound to make moulded candies, then you just eat the remainder. Or you can just be a total barbarian and not even pretend you bought it for any other reason than to chop it up and eat it "chunky"

It's amusing that Europeans find "milk chocolate" puzzling, since they were the ones who invented it.
 

Have any of you seasoned travellers noticed whether the people of different countries have generally the same prefernce in choclate ie taset, texture etc? These sorts of questions haunt my sugar-vexed mind this time of year.

ps: Do you guys have Cadbury? I live about a mile from a Cadbury factory and it sells direct to the public.

here's to an expanding waistline

[This message has been edited by hoptoad (edited December 20, 2006).]
 

On the other hand, I must say that I prefer Reese's cups to Hershey's chocolate of any kind...though Hershey's owns Reese's, so I suppose they're related.

And yes, hoptoad, Hershey's kisses tend to be crumbly...but not when they're very fresh (as in, from the closest thing to a factory direct store you can get...at Hershey's 'Chocolate World').

Inkwell
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"The difference between a writer and someone who says they want to write is merely the width of a postage stamp."
-Anonymous
 

If it forms a major plot point---say, your character commits a murder and leaves a candy bar wrapper at the scene of the crime---you might consider an original name.

At least using the "real names" will give your world an air of versilimitude...am I spelling that right? It's not in my big Webster's...