And why you shouldn’t fear using them

First things first: I am not a trademark attorney. If you want legal advice on using trademarks, please consult a legal professional. However, if you want the point of view of someone who has managed numerous worldwide trademarks in her career in marketing, and also writes novels, read on.

Am I allowed to use trademarks in fiction? Won’t I get sued?

Across the online writers’ groups I frequent, I’ve seen this question more times than I can count. Unfortunately, questions about trademarks in fiction are inevitably followed by innocent misconceptions, wrongheaded advice, and blatant fearmongering. 

The true purpose of trademarks

The first and most important principle you need to understand is that the purpose of a trademark is to prevent unfair competition in the marketplace.

I can sell heavy work boots and you can sell heavy work boots, but only Doc Martens can sell Doc Martens®. If I were to put the Doc Martens brand name on my own version of heavy work boots, (or any footwear, really) you bet your bippy I’d be in trouble with Doc Martens for violating their trademark and they’d have excellent grounds for a lawsuit.

It’s precisely this kind of deception—passing products off as being manufactured by a trusted, successful company—that registered trademarks exist to prevent.

But can I put Doc Martens boots on my fictional characters? Sure I can. And I have. This is because I’m not selling a competing boot; I’m simply mentioning a brand name in a work of fiction.

Forget glowing terms

Here’s some poor advice on trademarks that I see repeatedly online:

MYTH: You can use trademarks, but only if you talk about them glowingly.

There is nothing about registering a trademark that requires others to talk about your product in glowing terms, whether in fiction, opinion pieces, journalism or even in ads for competing products. The fact that someone owns a trademark doesn’t mean they have grounds to sue you if they don’t happen to love what you said about their product.

Can my character’s Doc Martens boot cause blisters on his feet? Sure they can. Can my character complain that she’s broke because she buys too many pairs of Docs and they’re expensive? Sure she can.

Trademarks and “intended purpose”

Here’s another misbegotten notion:

MYTH: You can only use a trademarked product in fiction if the product is used for its intended purpose.

This notion is a real head-scratcher. I don’t even know where people get these ideas. It’s perfectly fine for your character to whip her Doc Martens boot at the head of the masked intruder crawling through her bedroom window. It’s even all right for the masked intruders to throw his Doc Martens at a victim.

Intended purpose be damned. You’re writing fiction, not a product instructional manual.

Trademark v. Copyright

MYTH: The trademark owner is the only one with the right to publish the trademarked word or phrase.

This notion comes from confusing trademarks with copyrights. They are not the same thing. Copyrights provide legal recourse when written material is plagiarized or published without permission. The few words that make up a typical trademark are not substantial enough for copyright protection.

So your characters can drink Coke, or Coca-Cola if you like. They can even sing I’d Like to Teach the World to Sing (because song titles are not copyrightable). But what you can’t do is reprint the lyrics, or even a stanza of the song without violating copyright. Well, you could, but first you’d need permission from the music publisher.

So relax. Trademarks have much more to do with what happens in the marketplace than they do with publishing.

Your responsibility

As a writer, you do have a responsibility to use trademarks properly. Never treat them generically. Facial tissue is generic. Kleenex® is a trademarked brand of facial tissue. Spelling Kleenex “kleenex” would be treating the trademark generically. So would using it as a verb, such as “she kleenexed her nose.” That’s a no-no.

While I’m sure Kimberly-Clark Corporation (owner of the Kleenex trademark) would love for you to always write Kleenex® Brand facial tissues, if you’re writing fiction, that’s going to be a problem for maintaining character point of view.  Your average human doesn’t think or talk in registered trademarks and ® or ™ symbols, and fiction writers are not held to the same standards as those writing promotional copy for the marketplace.

When writing fiction, you’re pretty safe if you treat the word as a trademark, capitalizing it and not using it as a verb. So, she stuffed her bra full of Kleenex; he shoved his iPhone into the pocket of his Levi’s, etc.

Of course, if you’re trepidatious about trademarks you could always write she stuffed her bra full of tissue; he shoved his cell phone into the pocket of his corduroys. Nothing wrong with that.

What about trademark lawsuits?

MYTH: If you inadvertently misuse a trademark in your fiction, you’ll get sued.

You’re incredibly unlikely to get sued by overzealous trademark owners if you use trademarks appropriately. Just using a trademark incorrectly (which you shouldn’t do, but I digress) is rarely enough to spawn a lawsuit. Your work of fiction probably won’t create the kind of damages that would make it worthwhile for a trademark owner to drag you to court.

But let’s say you’re a best-selling author like Stephen King. And you’re writing a post-apocalyptic novel about a breakfast cereal that’s suspected of causing a virulent disease that wipes out nearly everybody. And the survivors name that disease after the breakfast cereal.

In this case, I don’t think you’d want to call that breakfast cereal Cap’n Crunch™. Captain Tripp’s though, that’d work just fine.

When in doubt, be like Stephen King; use your noodle.

Relax, and use trademarks properly

Most trademark violations are resolved with the trademark owner simply notifying the violator, via a cease and desist letter, that he’s in violation and should stop. It’s when the violator continues misusing the mark, a lawsuit may be filed.

So go ahead and use trademarks if it suits the tone of your fiction. Just don’t use them generically, abuse them, or blame your apocalyptic plague on them.

 

 

Photo by Noah Buscher on Unsplash