Thursday, February 12, 2015

Trademark Name Reminder

Going along with another recent post, I wanted to remind everyone about a reminder on trademarked names.  We all have a tendency to use specific brand names as generic names in our work, and until you go back through what you've written, you can easily overlook such.

I rediscovered this as I was going through Akeldama for what I thought were final edits.  I was already aware that I'd put in a few names, like a restaurant called Philippe The Original and the gun manufacturer Glock, but I didn't catch that I'd included a whole bunch of other brand names that I might've used in everyday conversation without realizing it.

(Incidentally, I received permission from both Philippe's and Glock to use their names)

You can use brand names under the Fair Use Doctrine if they refer to specific things and don't defame the company, but you can't use them generically.  For example, you can say that the cola you ordered is a Coke, but you can't say your characters are drinking coke when it's obviously a substitute term for soda(I'm from the South, and we do that all the time - "What kind of coke would you like?"  "Mountain Dew!").  Also, don't talk about a particular type of car blowing up due to faulty gas tanks or something since that would be seen as defamation, and it could come back to haunt you in court.

In short, get permission for everything - it's the safest approach.

That means you must be prepared for them to deny you permission.  The second chapter of Akeldama originally took place on a large Midwestern college campus, and the school gave me long as it didn't involve violence.  Well, Chapter 2 is the opening of the first big vampire attack, so I wrote them back to let them know, and they subsequently said I couldn't use the name.  It sucked, but I changed it to a more generic school so that I couldn't be sued for trademark infringement.  Additionally, there's a scene where the main character uses a common household disinfectant to spray on wounds of his torture subject in order to gain information, but the name, although nearly synonymous with this type of spray, was too specific, and a direct link would be seen as defamatory(even though everyone knows this is how it works).

There are a lot of gray areas where you might be able to get away with using a brand name, but it's best not to risk it.  If the name is that vital to your story, get permission first, but be prepared to find a way to use another.  Better to re-write a story than write a legal brief in court.

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