posted
This is such a newbie question, but I did a search on Hatrack and didn't find anything. You guys have been nice enough so far...so...can we use brand names in stories?
The particular one I need to know about is velcro. It features prominently in my low-grav environments.
But then there's stuff like kleenex, coke, pepsi, tang, pampers, kodak, etc. (I don't have a need for any of these specific things, but I'm trying to think of a broad set of examples to see if there are any exceptions.)
What about company names like Honda, IBM, Microsoft. Does it matter if they're still around? Can I use Enron and PanAm in a more freewheeling fashion than Haliburton and Lockheed-Martin?
posted
I don’t see why not. I just finished the latest book be OSC, Empire. It has brand names in it like Google, and Marriott. He could have also gotten the copy right thing to use the names. OMAGAOFTHEALPHA Posts: 26 | Registered: Mar 2007
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posted
As long as you're not putting the brand/object/company in a bad light, it's fine to use the brand name. I doubt those companies would object to free advertising. Posts: 52 | Registered: Mar 2007
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posted
It's a question of trademark, KayTi. You can use company names like Google and Marriott to refer to the companies, but if you use a trademark, like Kleenex(TM) or Xerox(TM) or Velcro(TM) without the trademark indicator as I have here, you are helping to generisize the trademark and companies can lose their trademarks that way (the cost of which gets passed on to the consumer).
Instead of using a trademark and including the clunky trademark indicator, you should use a more generic term that doesn't abuse the trademark, like "facial tissue" and "photocopy" and "hook and loop tape" (respectively). The challenge is in finding out what the non-trademark term actually is.
posted
I'd rip off velcro. Everyone knows what it is. Hook and loop tape will confuse the heck out of people. I think as long as you don't engage in libel, you're okay. I don't think I'd use Honda or Kleenex, because it's easy to say car or import, or facial tissue. But velcro? You gotta have velcro.
posted
I'm no lawyer, but I don't think anyone can really stop you from referring to trademarks however you like in fiction. The purpose of trademark law is to keep you from putting someone else's good name on your product. But the products in fiction are fictional.
However, it doesn't seem to me to be as bad as indicated in the previous opinion piece. According to Public Knowledge's site
quote:The bill now provides that:
“fair use of a famous mark by another person, other than as a designation of source for the person’s goods or services, including for purposes of identifying and parodying, criticizing, or commenting upon the famous mark owner or the goods or services of the famous mark owner”
is not actionable.
However, they go on to say that ambiguity in the language will allow the courts to interpret the bill in a way which will allow them to issue injunctions more often. If this happens, it will "chill more creative speech despite the parody and criticism exception than the current statute chills without it."
Even so, I can't see how use in fiction, simply as a commonly used identifier for an item, and not even as a parody or criticism, would be a problem.
[This message has been edited by rickfisher (edited March 10, 2007).]
posted
A very well known writer has of late been mentioned in the SF newsmag Locus with the "TM" attached to his name. I'm assuming he trademarked his name (if there was an announcement, I might've missed it---I let my subscription lapse for a couple of years while I rid myself of debt.) But I couldn't bring myself to use his name if I had to use the "TM"---or was requried to use it on penalty of deletion. I've come to discover I have limits to what I'll do for what I want, and I guess this is one of them.
Posts: 8809 | Registered: Aug 2005
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posted
OSC already rang in on this. Trademark isn't copyright. If everyone around the office Xeroxes they're documents, then say that. As long as you're not trying to sell a product under the name, you are within your rights.
[This message has been edited by InarticulateBabbler (edited March 10, 2007).]
posted
Trademarks are stronger than copyrights, and the companies that own them will take you to court to protect them (particularly if you use their name in a bad way). Bayer didn't trademark the name "aspirin" and it became the "generic" name for that kind of painkiller. Hormel is currently doing some legal maneuvering to stop the internet use of "Spam" which is a trademarked brand name. If you use the name with a capital letter ("Coke") and in a polite way (not defaming them), then you don't have a problem, as I understand the law (and I'm no lawyer, but I have researched this a good bit for my own info). If you say 'let's have a coke" (without the capital letter), you're in violation of the law and they can bust your chops over it. A farmer in PA painted Snoopy fighting the Red Baron on the side of his barn back in teh 1960s - it was very cute, we saw it when driving by on a trip one time. Soon after we saw it, we read that he was being forced to repaint his barn to cover up Snoopy by King Features Syndicate, who owns the rights to "Peanuts" (or did at that time - I suppose they still do). Paramount won't allow people to use "Star Trek" terminology ("phaser," for instance). Warner Bros. has TRADEMARKED all the character names in the Harry Potter books - you'll see them as "Hagrid(TM)" "Hedwig(TM)", "Fawkes(TM)" (even the minor characters - I'm serious). So I can't name the bronze owl I sculpted "Hedwig" although it's a snowy owl (I hadn't planned to - I'm not stupid). Warner Bros. is licensing the names to certain products they've approved (and are getting a cut from) and they don't want their profits cut into - which is why all these other companies defend their trademarks. My own logo and business name (I'm a professional artist, which is why I've researched copyright and trademark as much as I have) is trademarked, and if I find someone trying to use them, I will bust their chops most sincerely and with extreme prejudice.
Think about it this way - do you want someone to violate your copyright on your novels or stories? What would you do if they did? If you spent literally millions of dollars creating a brand name, and somebody came along and used that name generically, what would you do about it? Put yourself in their shoes, think of things in a BUSINESSLIKE fashion, and you might actually grasp the trademark and copyright laws a lot better. Companies allow reasonable use - use the capital letter and proper name for the product, or don't use the brand name at all (use "cola" rather than "Coca-Cola" or "Coke" or "Pepsi" for instance). Be smart and stay out of trouble - the trouble those big corporations can cause us little guys isn't worth it, believe me.
posted
I read awhile back that the Elvis Presley estate trademarked "Elvis," "Elvis Presley," and "Graceland." And they also tried to trademark "The King," but I gather they just got laughed at before they got turned down.
I suppose you could name your characters or props "Hagrid," "Hedwig," and "Fawkes," so long as you don't imply they're the characters from the Harry Potter books. (Wasn't there a movie a few years ago, but post-Harry, called "Hedwig and the Angry Inch"?)
As for Snoopy and "Peanuts"...I've also heard tell that they've never withheld permission to put a character on a child's gravestone. Most of these things are run by reasonable people who won't spend each and every minute of every day tracking down violators and trying to punish them.
(My old hometown used to be home to Smith Brothers Cough Drops, with the used-to-be-familiar trademark logo of the two bearded Smith Brothers. Everybody always called them "Trade" and "Mark" 'cause of the way it was printed under their pictures.)
posted
Bottom line on trademark infringement: Are your lawyers better than their lawyers? And can you afford the court fight, whether you win or not?
If the answer is 'no,' then leave it alone.
Corporations hire lawyers for the express purpose of pursuing infringement to trademark and copyright. The story about Snoopy doesn't surprise me. You want to see how far the long arm of corporate law extends, and how swift it is to give you a legal clubbing? Try violating a trademark owned by Disney.
Kathleen had excellent advice. Use generic names like "facial tissue" or such. And if you are writing sci-fi, make up your own "velcro" like product... introduce a difference into it and then you can name it what you like. Be creative.
The law around this issue will depend entirely on the specifics of how, and what, you try to integrate a trademarked name into your writing. If you are not clear exactly where you stand legally in regard to use of trademark and copyright, it's foolish to dabble with it.
[This message has been edited by Elan (edited March 11, 2007).]
posted
Elvis Rules. I don’t think you can copyright a name. If there is a copyright on the name Elvis then one of my old, old friends needs to change his name. Yes his mother named him Elvis Presley. Rommel Fenrir Wolf II Posts: 856 | Registered: Nov 2006
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posted
My understanding was that you can't copyright a name as in, say, Spam. Now another meat processing company cannot mix together some meats and (shudder!) who know what all else and call THAT spam, but some gardener who develops a new pink rose and wants -- for some weird reason -- to call it the Spam Rose...he can.
Posts: 1580 | Registered: Dec 2005
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posted
Well, the Elvis estate didn't trademark the names until sometime in the early eighties, I think. If your friend (a) wasn't born after that, and, more importantly, (b) doesn't claim to be in some way connected to the Elvis Presley, he should be okay. (Though the estate does repeatedly use its might and clout to force its will on the unsuspecting on questionable grounds.)
Others use the name "Elvis" and are entitled to get away with it. The late actor Anthony Perkins had an uncle named Elvis and also named a son Elvis as well---evidently the name was kicking around his family. It had to have come from somewhere...
posted
MUMMMMM Spam. That is some good eaten. That is a quite funny song as well. God do I love Monty Python My friend was born in 1986 and he in no way clams relation. His mother is a big stoner (as our inside joke says) that is why she named him that. Rommel Fenrir Wolf II
quote: OSC already rang in on this. Trademark isn't copyright. If everyone around the office Xeroxes they're documents, then say that. As long as you're not trying to sell a product under the name, you are within your rights.
That’s the first thing that came to mind as I read the thread. I want and looked it up.
quote:I was wondering the other day about copyrights. Say I wanted to write about a girl going to McDonald's. Would I have to check to see if the word "McDonald's" is copyrighted? Or if I wanted to write about a cat called "Snape" (which is copyrighted by J. K. Rowling now, if you didn't already know) would I have to email her with a special request? "Do I have to check every single word I want to use in a story I'm hoping might get published?"
-- Submitted by Jackie Nguyen
OSC Replies:
Individual words can't be copyrighted. They CAN be trademarked, but contrary to rumor you have no responsibility, as a fiction writer, to respect trademarks - only if you were marketing a product would you have such a responsibility.
McDonald's would have no grounds to sue you for having a character walk into a McDonald's.
They might WANT to sue you if you depicted McDonald's as a purveyor of meat derived from dead human corpses, but it would be tough for them to get past the "poetic license" and "satire" and "humor" restrictions on the libel laws. (If you were writing nonfiction, that is entirely a different matter.) It gets complicated, though, when it comes to characters and character names. You don't have a right to write a story using any other author's character.
You would probably be all right, though, having a cat named Snape - as long as you made it clear that the cat had been named after a character in a novel by J. K. Rowling. In other words, as long as you give credit, and don't use the actual character (i.e., you are not creating a Harry Potter story or a story set in the Harry Potter universe, but rather are creating a story set in OUR universe in which Harry Potter novels have deeply penetrated the culture), you are probably fine.
As to words that are NOT names, you are free to use them. Writers coin words all the time. I coined xenocide, for instance, and can't now prevent anyone else from using the word however they wish.
And even trademarks can't be protected from fiction writers. If you have your characters share a kleenex or xerox a document, the company that owns those trademarks can scream or yell all they want, but you are merely recording the language as it is used by real people, and they have no grounds or standing to go after you. You are not trying to sell a competing product or create confusion between your product and theirs, and so you are not infringing their trademark. Rather you are asserting the public right-of-way, so to speak - that their trademark has been so successful that it has entered the language as a word.
posted
Legalities aside, brand names can hurt your story, especially if you rely on them to do the work for you.
For example, take this quote from the Turkey City Lexicon:
quote: #
Brand Name Fever
Use of brand name alone, without accompanying visual detail, to create false verisimilitude. You can stock a future with Hondas and Sonys and IBM's and still have no idea with it looks like.
Tell me what your product is, tell me what it looks like, if it's important. If it's the present, tell me it's a car, or what kind of car (SUV, compact, truck). If it's the future, tell me the car hovers, uses wheels, is completely automated so all you have to do is get in and ride.
Matt
PS: You have to have velcro. I mean, what else is there? Just don't have your velcro attack and kill your characters.
[This message has been edited by RMatthewWare (edited March 12, 2007).]
posted
I remember a novel by Vernor Vinge (Marooned in Real-Time) where some next-to-the-Singularity technology is examined and something is said along the lines of "the only things familiar about them were the brand names." It seem reasonable that in the [near] future, even if the technology is incomprehensible, the guys and companies marketing it will be the same.
*****
On Elvis again...just this morning, I caught a repeat episode of "Tutenstein." (On the Discovery-for-Kids channel---a pretty good show. I like it; it amuses me.) The characters visit a place called "King Land" in "Memphis"---it invokes a certain late inhabitant of Memphis, Tennessee down to hordes of imitators in dark hair and sideburns and even peanut-butter-and-banana sandwiches...but no names are mentioned.
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