Authors Using Brand Names, etc.

Does an author need special permission to mention brand names of products? Famous commercial places (ballparks, amusement parks)? Sports team names (NBA, NFL)? Colleges? College team names? Towns, cities, and famous landmarks? Famous people’s names (local, national, sports and political figures)? Are any of these things in the public domain?

Assuming the author presents such things in a non-slanderous and positive (or neutral) manner, is it ok to use such names without written consent? I have known some books to make mention of such, but I wonder if it could be risky? Is it best for the author to make up his/her own places and things…or make very strong suggestions to the readers?

I would appreciate to hear what the SDopers say about this, especially SDopers in the USA. - Jinx

Well, Scott Adams of Dilbert fame makes special care to put all brand names in quotes. He mentions that he got a nasty letter when he forgot to put them around what I recall was velcro.

Thomas Pynchon did it a lot in Vineland. I don’t remember anything about it on the acknowledgements page, though.

I’m pretty sure it frequently works the other way, at least in movies. The companies pay the movie producers to have the characters drinking Pepsi or saying “Let’s meet at Starbucks.” I don’t know if every brand name reference in every book is paid for, but I imagine some of them are.

Stephen King uses them a lot, too. Brand names are handy signifiers of class and status. And, of course, the sex and shopping novels would only be sex novels if they couldn’t throw in the occasional Cartier or Moet and Chandon amid the satin sheets.

So, no, you do not need permission to use brand names, especially if the use does not slander the business. It may become more problamatical if, say, you have a character criticize McDonalds, but unless you’re really nasty about it – or you get a company with a legal department infected with PMS – chances are they’ll let it go, because such suits don’t stand much of a chance in court.

BTW, Faye Weldon earned herself a hefty payday by writing a novel (“The Bulgari Connection”) at the behest of the company. Originally conceived as a limited-edition giveaway for their customers, they agreed with Weldon that it should be made available for those of us who shop at Wal-Mart.

Depends on the product and on the publisher. Go ahead and write the book and if there are issues, you’ll find out when the book is edited.

We’ve been asked to change the names of cereals to generics and to disguise a character more as he was recognisably a household name.

Placenames are fair game, you can use those without worrying. colleges, sport teams are generally fair game if you’re referring to them in passing. You can have a book set at a particular college FE but if you were to base your book on a particular sports team, you’d probably be well-advised to change the name to a fictitious team.

Basically it’s not a big deal and if it were going to be, the publisher sorts that out.

I used to work in the Copyright and Trademark field.

Generally, a well known trademark like Burger King is fair game if you just happen to say your character went there, or likes it.

The subject gets more difficult if the plot is about being poisened by a Burger King fish filet. That is when most editors will politely suggest you change the name to Burger Barn or whatever.

In other words, using a trademark in a good light is good. Otherwise, get ready for the lawsuits.

And trademark holders will also appreciate it if you use their mark correctly: at the very minimum capitalizing it (Kleenex), and better if you use it as an adjective rather than a noun (“Kleenex tissue,” not “a Kleenex”). When it’s not awkward, I usually change trademarks to generics when copyediting.

In a book, you can use any brand name you like. Freedom of speech trumps a company’s desire to project a good image for itself.

The only “restriction” is that you cannot turn a trademark into a generic term (e.g., “She reached for a kleenex.”). Even that is not a real problem, but will get you a letter from the company’s lawyer explaining why you shouldn’t do that. It is unlikely in the extreme that it will go any further than that, though – the letter counts as defending the copyright, which helps when they really need to go after someone who’s infringing. And the absolutely last thing they want to do is sue you over this and have a court rule the term is generic.

Also, there is no legal ban from saying a character in your book got sick on a Burger King hamburger. BK has no real case – it’s not libelous because, as a work of fiction, it is not an assertion of fact. They may not like the way they’re portrayed, but they can’t successfully sue you for it* (though they may make noises like they will, which is why editors may be antsy about it – even a baseless suit would cut into the profits of the book, and be bad for the publisher and author).

There isn’t any need for permission to use a brand name product in a movie, either. Movies avoided brand name for years because they didn’t want to promote brand names, not because of any ban on them. Nowadays, movie makers ask manufacturers to pay for placement only because it’s a goldmine for them, not because of any legal rights. It’s perfectly OK to show brand name items without paying anything.

*They certainly can’t argue that people can’t use their trademark names in books, since they’re willing to allow positive mentions of it.

The Authors Guild compiled an enormously long list of books whose titles referenced brand names or slogans in its amicus brief supporting Al Franken when Fox sued him for using “fair and balanced” in the title of his recent book. Fox’s suit was laughed out of court, quite properly, but just the fact that it was filed may have a chilling effect on editors in the future. Lawsuits can get filed just in the knowledge that it is expensive to defend one, even if there is no basis for the claim.

However, in practice, I don’t know offhand of suits, much less successful suits, just for mention, even negative mention, of brand names in fiction.

Real peoples’ names are a different matter. The Authors Guild Bulletin talks about several recent suits over the use of celebrity names and likenesses, with the courts coming down on different sides. Celebrities, even living historical figures, have increasingly been turning to the courts to defend what they consider to be negative uses of their fame. In the not-so-distant past I would have said that you could use these names as you pleased - and there are certainly hundreds of instances in fiction than have. Now I’d be a little more careful. The courts are all over the map on this issue.

Contrary to what TJdude825 said, the only case I know of in which a company paid for a mention in a book is the Fay Weldon “novel.” Authors could only wish that they would get paid for such mentions.

Jim Monroe, however, did more than wish. According to a column in the Romance Writers Report, he sent out ten dollar invoices to every company whose name he mentioned in his novel, Everyone in Silico. He’s still waiting for responses. :smiley:

You seem to contradict yourself, IMHO. In your example, is it more proper to say “She reached for a Kleenex tissue”, as Scarlett67 has suggested? Using it as an adjective? Why is this any better than using a product name as a noun?

So, if I want to mention the East Gybipp WooWoos in passing, I should say “East Gybipp WooWoo soccer team” to keep it as an adjective? - Thanks, Jinx :confused:

As far as trademark is concerned, it’s perfectly OK to use “Kleenex tissue.” The use of the name as an adjective is fine, and is exactly what the trademark holder wants (though I supposed they’d prefer “Kleenex tissue, the best tissue made” :slight_smile: ) I don’t know the exact reasoning, but I think it’s because it is not turning the trademark into a generic term (especially if it’s capitalized, as the trademark holders will insist).

Writing “he used a kleenex” or “he xeroxed some copies” is using the trademark into a generic term. If the company doesn’t defend that, they could lose their trademark rights. If it can be shown that the trademark has become generic (like, for instance, “cellophane” or “shredded wheat” – both originally trademarks), then others can use the trademark term. No company wants that to happen.

The general rule is that using a trademark as an adjective is fine (though the trademark name should be capitalized), but using it as a noun or verb will get a nasty note from their lawyers.

Your example is not an issue, since town names are not trademarks. You can set a story anywhere you want.

Chilling effect? That probably boosted sales of the book!

If you look in the Writer’s magazines, there are huge ads (half- and full-page) telling writers to always use the brand name as an adjective. The companies are afraid of losing their copyrighted trademark to the limbo of generics. I understand that aspirin, cellophane, zipper, and adrenaline (!) all suffered this fate. Kleenex and Xerox and Coke don’t want to go the same way. Hence the ads.

The problem is, if you wrote things the way the company lawyers ask you to, you end up with sentences that no real person, outside of the legal imagination, would ever utter. “Hand me that Kleenex brand tissue.” So authors customarily ignore these ads. Then they have a Miller brand beer.
You can avoid this altogether by making up brands, as Rex Stout did in his Nero Wolfe books. Bermer locks and Heron automobiles exist only in his world.

This is what bugs me about commercials. No one ever talks like the people in commercials do:
“Hey, Bob, where ya’ goin’?”
“I’m taking little Jenny to soccer practice in my sporty, fun-to-drive Dodge Jalopy.” [barf]