Just curious, are there any rules about using trademarked, copyrighted etc. products in a story? For instance, I'm working on one where I mention a Costco ham. Is it okay to name speciic products, or is it a no-no? How about referencing other books within your book (ie your character is reading something)? Movies? Posts: 266 | Registered: Apr 2010
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Brand names are regarded as an important component of certain subgenres of fiction - the S&F sub-genre of "chick-lit" relies on heavy brand name usage, and so do certain satirical modern works (American Psycho and Fight Club spring to mind). Both use names/brands that will resonate with their target readership. Naming Costco might be reasonable but naming a particular brand of Costco ham seems an odd choice - how many people will it be familiar to, and is there a reason to name that specific product while not naming anything else in your story (i.e. clothing manufacturers, car models, restaurants...)?
I always ALWAYS get hung up on brand names, movies, songs, etc. I try my best to stay away from them when I write. Because what is familiar and important to me is probably not going to resonate with the rest of the world. And some things, like movie or tv show names, will date your book, sometimes to a point of being unrelatable to newer generations.
However, in one of my stories, one of my characters was playing a PSP type handheld game. I did my normal thing and wrote about it without naming a brand or specific model. But when I went back and read the book again, it was obvious I needed to come out and say "PSP" or "NINTENDO". It was important enough that I broke my rule.
A few other exceptions I make are for Wal-Mart and in a few instances, cars. Wal-Mart I use as a measure for just how small a town is--if they don't even have a Wal-Mart, you know they're in bfe.
The car was important because MOPAR brought two characters that should not like one another together. It was the glue between a father and his daughter's new boyfriend.
Trademark isn't the issue--your agent and editor can help you take care of whatever issues might come up with that. But I'd be careful to only use what you need. If you go back over the Costco ham part and it is something you can change or leave out, why wouldn't you? (I'm going to take a guess here and assume you are going for a size reference since Costco is famous for selling 5 gallon buckets of mayonase and 3 lb. slabs of bacon. If that's the case, your supporting information should be enough to make the mention of Costco acceptable. That's true of any mention of brand: as long as your text supports the need for a name, I think you're in the clear.)
The risk with using trademarks is that you might use something casually without thinking about it---and that trademark laws come smack up against the natural process of word creation. Invariably the trademark owners will lose all control over their trademarked creation...but practically they might unleash lawyers on you, and they've got deeper pockets.
I'd advise rewriting to avoid it...unless said rewriting makes you look really really stupid.
(As does some trademarking. A well-known SF writer trademarked his name---a questionable practice, legally, if you ask me, a layman---and some places place "TM" in whatchamacallit, subscript, after his name. But I never will...I'll just not use his name unless it's necessary to identify a story.)
((Besides, I don't know if you can do subscript here...))
You can just put (TM) or (R) after the trademark name (and trademark owners would really like authors to do that when they do use a trademark). Part of the problem is that if too many people use a trademark to refer to an item, the trademark can turn into the generic term for the item.
Hence, trademark owners would really prefer that authors say "Kleenex(TM) tissues" if they aren't going to just say "facial tissues," and "Xerox(TM) copies" if they aren't going to say "photocopies," and "Velcro(TM)" if they aren't going to say "hook-and-loop fasteners," and so on.
Write the story however you want. But don't be surprised if you sell it, if the editor wants to take trademark stuff out. It's not merely a question of what you CAN do, as much as "How much is it worth to you, hiring lawyers and spending years in court to defend your legal right to use the trademark info." I got a letter years ago, at my advertising job, from the Kitty Litter (TM) company, requesting I cease and desist from using their very VALUABLE trademark name in advertising cat litter in general. Some companies are more aggressive than others in hunting down violators and flooding them with legal threats. Disney (TM) is notorious for that. They have lawyers who actively troll for violations.
Regardless of legal rights, as a reader, I find trademarks in stories annoying unless the plot is not focused around the trademark. Either it will date you (brands rise and they fall in the marketplace), or it will geographically isolate you. I did a crit for a writer who used some restaurant name in his story... well, that particular business chain is apparently prolific in the south USA where he lives, but there are none of them in the Pacific Northwest where I live, and I had no clue what he meant by his reference until he explained it to me. As a reader, the reference alienated me, and took me out of the story.
My advice is ask yourself if the story suffers greatly if you take out the trademark name. If the answer is "no" then leave it out.
The funniest trademark case I have heard of was an artist whose last name is Disney (no relation). Some of her artwork was mythical and so as she started selling rights to her work (like for use in other media, cross stitch patterns is one example), she was advised by lawyers to change her name. The companies she was trying to sell to were uncertain about taking on the lawsuit risk. While the idea that she can't work under the name she's had since birth is somewhat ridiculous, they said even if she could win, the court fees were just too high.
Posts: 232 | Registered: Apr 2010
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