It's easy to see the temptation to use real brands in fiction writing. Real brand names can create a sense of realism and authenticity in your story. They can help readers relate to your characters and setting because they are familiar with the brands mentioned. A well-known brand can easily evoke a memory, using any or all of the five senses with just a word or phrase. For example, the mention of "Mister Softee" can transport you back to a sunny day playing freeze tag with friends, as the ice cream truck's tune fills the air. Using real brand names can also save you time and effort in describing products because readers already know what they look like. For instance, a character wearing a pair of Christian Louboutin stilettos can easily evoke an image of their signature red-soled shoes and the quality of their fashion sense.
So, is it okay (legally) to use branded product names? Here's what you should consider when using registered trademark brands in fiction writing.
Legal Considerations When Using Trademarks in Writing
As trademark holders, companies are obligated to ensure that their trademarks' integrity and value are maintained. Infringement isn't the only concern. The fear of a trademark being tarnished or, worse, genericized is what motivates companies to police the artistic use of their brands, especially in films and literature. Use of a famous brand in literature or in association with products can also create a false sense of association that a brand owner may not want.
What is a Genericized Trademark?
When a brand name is so widely recognized that it becomes a common term in society, it is known as a genericized trademark. Essentially, the brand name becomes interchangeable with the name of the product itself. Registered trademarks, VASELINE, Q-TIP, BAND-AID, and KLEENEX are all examples of brand names that have become synonymous with the products themselves. It's more common that someone would ask for Vaseline than say, "I need petroleum jelly," –even if they're not asking for the specific brand.
This phenomenon of genericized trademarks can be both a blessing and a curse for companies. On the one hand, it means that their brand has become so recognizable that it is essentially a household name. On the other hand, it can make it difficult for companies to protect their trademark and prevent others from using their brand name to sell a similar product. Some other examples of genericized trademarks include XEROX for photocopying, FRISBEE for flying discs, and ZIPPER for a type of fastener.
Why Is This Important?
Overall, while having a brand name become a generic term may seem like a measure of success, it's important for companies to strike a balance between brand recognition and trademark protection. To maintain their trademarks, they must be vigilant and monitor their usage. Writers who improperly use trademarks, which can lead to genericizing a brand, are vulnerable to lawsuits by big-name companies looking to maintain the strength of their brand.
So how does a writer avoid this trademark pitfall? It's simple. Just use the generic term for a brand in your writing. Here are some common examples:
Kleenex "facial tissue"
Taser "stun gun"
Google "search engine"
Jeep "sports utility vehicle"
How is a Trademark Tarnished?
A trademark is tarnished when it is used in a way that creates a negative association with the brand in the consumer's mind. This can negatively impact the brand and trademark holder's business and reputation. A writer can tarnish a trademark in several ways:
1) making disparaging references to the brand, like having a character complain about the quality of a brand;
2) associating the brand with incorrect or vulgar products, like associating a popular brand of sneakers with racy lingerie; or
3) stating the use of a brand in an unintended or vulgar way, like having a character use a particular brand of cough syrup to get intoxicated.
Guidelines to Consider When Using Registered Trademarks in Writing:
1. Regarding trademarks and service marks, using them as proper adjectives rather than nouns or verbs is essential. They should always describe a generic noun that defines the product or service. For example, don't say, "I Xeroxed the document," but instead, say, "I made a photocopy of the document using a Xerox machine." Keep in mind that a trademark is a company's brand name associated with the product or service, not the actual product or service. To properly use marks, they should not be pluralized or used in the possessive form unless the trademark itself is plural or possessive.
2. Always correctly use the trademarked name. This means consistently using the appropriate capitalization and symbol (such as ® or ™) where necessary or adding the word "brand" after its use. Additionally, a trademarked brand should be distinguished from its generic identifier by setting it apart in bold, italics, or a different font.
3. Always strike a neutral or positive tone when referencing a brand, avoiding negative or vulgar references or refrain from referencing the brand altogether, using the generic descriptor instead.
4. Always correctly associate the trademarked brand with the products/services it is registered for and its intended use. When in doubt, use the United States Patent and Trademark Office (USPTO) website as a reference to look up registered trademarks and the products/services they are registered for. Additionally, the USPTO can be used to locate the owner of a registered trademark. Some companies list their particular guidelines for use on their website or who to contact to seek permission for use in literary work.
5. Be aware of the industry or market in which the trademarked name is used. Some industries may have very particular standards for how a trademarked name can be used in artistic work.
If you are unsure how to use a trademarked name, consult a legal professional to ensure you are using it correctly and not infringing on any rights.
Deborah C. Mortimer is not only an author but a trademark attorney. To learn more about trademarks and how to protect your brand, contact her at https://trademarkyourassets.com