What are the rules, limitations, etc. of using a trademarked product, by name, in a work of fiction?
To be specific, I had an idea for a short story last night where a phone AI (a bit more advanced than the current ones, but not implausibly so-- It’d be set in the future) is one of the two “characters”. It’d be simplest for me to just introduce the AI as “Siri”, which would quickly and easily let the readers know what they’re dealing with, but on the other hand, I can see how that might get Apple’s lawyers upset. Of course, I could just play it safe and give the AI some other name, and either explicitly explain what it is, or just trust my readers to figure it out.
An interesting blog is Mark Fowler’s Rights of Writers. He covers Can I Mention Brand Name Products in My Fiction? He is a New York media attorney. And the entry is too interesting to summarize.
Stephen King novels are filled with constant product name-drops. Christine was a 1958 Plymouth Fury, not a generic or fictional vintage car. But since the book didn’t imply that all Plymouth vehicles were likely to come alive and murder people the car company didn’t sue.
The first amendment trumps trademark law, especially since trademarks are only used in a business context.
You can use trademarks in any way you want in a work of fiction. There are certain guidelies the trademark owners want you to use: the trademark must be capitalized and only as an adjective (e.g. " a Kleenex facial tissue" inserted of “a Kleenex”). But you can ignore those rules completely.
What happens if you break the rules? You’ll get a letter from the company’s lawyers saying you shouldn’t oughghta do it. And that’s all. They won’t sure you. Just sending the letter counts as protecting the trademark, which is what they want to do. They’d be utter fools to site you because what if they lose? They’ve lost trademark over nothing.
Use any trademark you want and, yes, even say bad things about the product.
If it’s a one-time name drop, don’t worry about it. But in this case, I’d make up a new name, such as ones suggested above. After all, the device is going to be somewhat more advanced than the current Siri, so you don’t want to suggest it’s the same as the current incarnation of Siri. Giving it a new name avoids the possibility that someone will write and say “Siri wouldn’t do that” or something like that.
Well, the current version of Siri certainly wouldn’t know what to do about a nuclear apocalypse, so I don’t think there’s any danger of it being mistaken for the current model. But yeah, I guess it is easy enough to come up with a similar-but-not-quite-the-same name, so I might as well do that.
It’s fun, too, to create your own products and corporate lines. Plus, you can be as cruel to them as you want, and nobody can do a thing about it. Make up your own “MicroPeach Computer Company” and dump on 'em. Whale on 'em! You’re totally free.
The traditional fiction disclaimer, “Any resemblance to any person is purely coincidental” is a good defense for products, too.
But, seriously, mostly it’s just plain fun! I’m blowing my nose into a Snottex hankie!
Similarly, there’s no reason for an author to mention who owns a given trademark, or to use the ® or ™ symbols, even if you know what they mean and how to use them properly. That kind of stuff goes beyond “Abundance of caution” and into the realm of cargo-cult voodoo nonsense. As has been said, the worst that will happen is the ritual form letter, which protects the brand and doesn’t involve any potentially disastrous lawsuits.
And, just to get it off my chest, mentioning who owns a copyrighted work you quote, reference, or blatantly rip off isn’t doing you any good, either: If your use is legal, it’s just as legal without the mention, and if it’s illegal, it’s just as illegal with the mention. As near as I can figure, this nonsense comes from confusing copyright violation with plagiarism. Copyright law isn’t about plagiarism. It’s minimally related to it, but a heavily plagiarized work can still be on the right side of copyright law (vide most of the late-period slasher films) and a totally original work can be in violation of copyright law all over the place (vide remix culture and fanfiction). This isn’t how copyright is generally understood by laypeople but it remains true.
Aside from Humbert-Humbert’s Melmoth, fiction writers generally use actual brand names of cars, often disparagingly. A spinster aunt is colored by whether she drove a Chevy or a Packard, a legitimate part of the writer-as-artist’s palette.
