Date Posted: 20/07/2016 | Category:
Trademarks In Fiction
A lot of fiction is set in the real world, so it's natural that existing products and companies would be mentioned. But what if they're trademarked? Are you allowed to mention real products and companies by name? The simple answer is yes - it would become tiresome to create fictional products and companies for everything that characters use/visit. There can be some legal issues around trademarks in fiction, but once broken down they are straightforward and easy to avoid:
This is the unauthorised use of a name that is likely to cause confusion about the origin of the goods or services. For example if you created a floor cleaning product and called it Fairy, then Proctor and Gamble who produce Fairy washing up liquid would have a case for infringement. Your product is not the same as a Fairy product, but is close enough to cause confusion in consumers about whether your product is manufactured or endorsed by P&G's Fairy.
Therefore in fiction as long as you are using the brand name to refer to their own goods, then this is considered nominative fair use and doesn't constitute infringement.
This is when brand names are generalised and are used as generic terms. For example hoovering instead of vacuuming, googling instead of searching on Google, and sellotaping etc. The legal argument is that this generalises the name and makes the product or brand less distinctive. The way to avoid this is to capitalise any brand names and avoid using them as verbs.
You are likely to run into more legal issues if you falsely depict a trademarked product as being dangerous or faulty. A manufacturer could complain that any disparaging depiction of their product could cause damage to their reputation. The onus is on them to prove this, that readers are taking the information as fact rather than fiction, but it's still a lot to go through when the simple solution is to create a fictional company and product.
This comes about if a manufacturer feels the trademark has been used in a disparaging or offensive context. For example Mercedes Benz objected to its cars being shown in the Bombay slums, and so the logos were digitally removed to avoid any legal entanglements. Again, if there is any risk of this the simple solution is to create a fictional company and product.
As long as you are depicting a real brand, product or company accurately and truthfully then you shouldn't have an issue and there is no need to include the trademark symbol. If for some reason you do want to use a real company or product in a negative context or disparaging light, then it is a good idea to seek legal advice before publication.