Can You Use Trademarks in Your Writing?
Christian writers are a scrupulous group and they have concerns about doing the right thing. One of the issues that comes up fairly often is whether you can use trademarked names in your writing.
When your heroine starts to cry, must her friend hand her a pop-up tissue, or can her friend offer her a Kleenex? If your character needs to make a copy of the secret plan, must he make a photocopy or can he Xerox it? Will the new boyfriend drive a red car, or can he drive a red Ford Mustang?
The fact is, you are free to use trademarked names under most conditions. I’m a writer, of course, not a lawyer, but these are the rules-of-thumb. If you have questions or doubts, check with an attorney in your area. Not a real estate attorney, but an Intellectual Property (IP) attorney.
There are some precautions you need to take when you use trademarks:
Understand the meaning of “Trademark Infringement”
The simplest case would be when a soap manufacturer puts out a new detergent called “Tide.” They can’t do that. Proctor and Gamble has been promoting that trademark since 1946. The name and mark have value. A newcomer cannot steal it. That’s one example of infringement.
Most writers will not infringe in this way. Not that it’s impossible—a writer could tell of the rise and fall of a major Chinese conglomerate who has a product called “Tide.” That would be wrong. However, if the homemaker buys Tide on a shopping trip, that would be okay. That’s called “nominative fair use” and it covers the normal everyday use of all trademarks.
Trademark dilution can be a problem, but not often
Xerox is a classic case of trademark dilution. The Xerox people hate it when your character makes a “xerox” of a page. Their brand is diluted by this kind of generic use of their brand name. Google goes off when people are told to “google” something. “Googling” is shorthand for doing an Internet search, but Google doesn’t like their brand name used in that way.
Maintaining trademark integrity is a big thing with most companies because they have a big investment in their trademarks. If you’re going to use their brand name, they want you to use it with specificity. All the big companies learned a lesson from the Bayer Pharmaceutical Company. They had a trademark on the word “Aspirin.” But they did not police use of the name and it fell into common use for any product that cures a headache. It’s no longer a trademark.
The best thing to do is to call things by their exact name. In your book, let the kids go to MacDonald’s and buy a Big Mac. That’s much more interesting than going to a nameless diner and buying a cheeseburger. And, as long as you don’t say they went to “mac’s burgers” to buy a “big mac,” you won’t dilute their brand.
Tarnishing a trademark is dangerous, and you want to avoid doing that
Tarnishing a trademark is when you say something bad about a product, like, “Twenty Apple Macs in the computer lab all blew up at the same time due to poor Chinese craftsmanship.” When you say something like that, and it cannot be proved true, you are potentially tarnishing the Apple trademark. You never want to defame a trademark in the name of creative license.
There was a well-known book by Ralph Nader called, Unsafe at Any Speed. It was a trademark-tarnishing book if there was one! It attacked the auto industry overall, and General Motors, Chevrolet and their Corvair model in particular.
Nader’s book revolutionized auto safety in 1965. He threw down the gauntlet when he said, “Slaughter on the highways has been a perennial phenomenon for nearly half a century, and still an industry is permitted to produce, unhindered, vehicles full of accidents and tragedies waiting to happen.” Ouch!
Nader was proved correct and he got away with the trademark tarnishing. However, if you’re thinking of writing a book that will specifically tarnish a trademark, you need to consult an IP attorney before you start.
If your plot requires that you “trash” a trademark, create a completely fictitious company and brand name and have at it.
Symbol not required in body copy
You can use trademarks throughout your book without using a ™ or ® symbol at each instance. In more recent times I have started putting a notice on the copyright page of my books. It says something like, “Microsoft Word is the registered trademark of the Microsoft Corporation. All other trademarks are the property of their respective owners.” Is this a “get out of jail free card” if you have trademark challenges? No, but it may ward off trademark challenges because it demonstrates that you are using trademarks in a responsible way.
Can You Use Trademarks in Your Writing? Yes. Follow simple rules to use them in a proper and consistent way.