This is topic Name Brand Store for Story Setting in forum Open Discussions About Writing at Hatrack River Writers Workshop.


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Posted by Crystal Stevens (Member # 8006) on :
 
I've a story idea that would work best in a chain store environment. Right now I'm thinking Wal*Mart. Since chain stores like this are found everywhere, would there be any risk involved using such a store as a setting?

I should add that there will be no bias or retoric aimed at Wal*Mart or any of its employees. Basically I need a very public-type discount/chain store to temporarily hide stolen goods where the thief can pick them up later. The whole story revolves around this.

So what do you think?
 

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Posted by JenniferHicks (Member # 8201) on :
 
You could invent a fictional close cousin. For example, on the television show Chuck, several of the main characters work at an electronics chain called Buy More. And Chuck himself is supervisor of the store's Nerd Herd.
 

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Posted by extrinsic (Member # 8019) on :
 
Walmart changed its name brand to one word in 2008.

Using a trademark in a narrative is dicey at best. Express permission for publication use is a best practice to avoid any possibility of costly and contentious litigation. Trademark use permission is ultimately a writer's obligation.

The issue is whether a trademark use interferes with a company's reputation and marketing. Some companies err on the side of litigious exuberance so that examples are made and no lenience causes lackadaiscal infingements of their intellectual property rights.

JenniferHicks' suggestion is a wise and safe one.
 

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Posted by redux (Member # 9277) on :
 
I would think that use of a trademark would clearly fall under the fair use clause/nominative use (i.e. used for identification purposes).

Where it gets dicey is that fair use/nominative use is a defense, not a right. In other words, you can technically still be sued, but you can then turn around and defend yourself by pointing to that clause. The likelihood of this happening, however, appears to be very low, as evidenced by any Chick Lit novel published

If you speak ill of a brand/trademark then you do run the risk of litigation. Nevertheless, there are forms of protected speech such as parody that would allow you to poke fun at otherwise trademarked or copyrighted material.

At any rate, this is my long winded way of saying, unless you are writing something contemporary/urban/chick lit where you're just doing a little bit of naming dropping without casting aspersions on said names, then it's safer to just create an analog.
 

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Posted by Pyre Dynasty (Member # 1947) on :
 
I think I'm going to use MalWart in a story.

On this one I'd err on the side of caution and not use it. Trademarks are dangerous. Although if you are writing a realistic story, particularly set in a real place where a real Walmart is you might have a good reason to use it. (Although if it set anywhere there is a Piggley Wiggley I go for that one instead.)
 

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Posted by LeetahWest (Member # 9402) on :
 
OSC used Walmart in THE LOST GATE. Though, I'm not sure what he had to do to be able to use their name, so that doesn't really help at all.
 

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Posted by Robert Nowall (Member # 2764) on :
 
Most things come up with a phony joke name...WALL-E used "Buy 'n' Large"...King of the Hill used "MegaLoMart"...something I forget the name of used "Try 'n' Save." You get the diea.
 

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Posted by Crystal Stevens (Member # 8006) on :
 
Thanks everyone.

I, too, like the idea of a sound-alike name and will probably go that route.

This is more-or-less along the same line of thought, but in my current WIP, I have my POV say;

“You mean to tell me this is a teleporter? Like Star Trek?”

would this be acceptable, or should I delete the last sentence?
 

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Posted by LDWriter2 (Member # 9148) on :
 
A while back one character in a novel shopped at N-Mart. This was before Walmart spread so much so that K-Mart was still it.

But Jim Butcher had a scene in a Walmart in one book even though I can't recall how he named it.

I have wondered about this because I figure I will be doing a scene in a store of some type in one or more of the novels.
 

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Posted by redux (Member # 9277) on :
 
This is my personal stance (not legal advice):

If people couldn't use trademarked names or allusions to copyrighted material in their writings then memoirs, anecdotes, parodies, urban fiction, chick lit, "literary" fiction, or fiction in general would never get published.

So long as you're not making defamatory comments (even if they are the fictional opinion of fictional characters), then there should be no cause for a running afoul a lawsuit.

I found this article to be quite informative:
http://www.publaw.com/article/fair-use-of-trademarks/


Examples from the top of my head:

WHERE THE HEART IS (some Oprah Book) - takes place at a Walmart
CHRISTINE by Stephen King - the whole book is about a possessed Plymouth Fury
AMERICAN PSYCHO by Bret Easton Ellis
Just about any book by Nick Hornby...

[ January 08, 2012, 02:13 PM: Message edited by: redux ]
 

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Posted by Jeff Ambrose (Member # 9437) on :
 
Depends on how big of a setting it's going to be. If, say, you have everyone trapped inside this store (like THE MIST), use a make-up name.

If it's just to add texture and verisimilitude and not a key setting, use Walmart.
 

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Posted by Robert Nowall (Member # 2764) on :
 
One thing: the grotesque avoidance of brand-names, and the overuse of made-up replacements, ostensibly to avoid trouble, can also wreck what verisimilitude there is in a story.

My abovementioned examples were attempts to be funny---if you're not trying to be funny, a made-up name might just come across as weird...
 

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Posted by Ken S (Member # 9010) on :
 
Shop smart...Shop S-Mart

My favorite made up store name
 

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Posted by extrinsic (Member # 8019) on :
 
The Publaw essay redux references above is an exceptional summary of the challenges intellectual property rights raise, as I understand them from hours of coursework on the topics.

Note the disclaimer at the end, however. While the disclaimer might come across as a wiggle clause, its subtext is profound. Intellectual property rights are not absolute, but they can seem to be, on one hand. On the other hand, they can be open to wide interpretation. Invariably, they are settled on a case-by-case basis. The most significant challenge intellectual property rights poses for struggling writers is judging when using someone else's intellectual property is risky.

In a perfectly ordered world, everyone would know precisely where they stand. The reality is intellectual rights are an ever moving target currently enjoying a balanced measure between creator, industry, and serving the greater good, as they were intended to. Perhaps the best sociolegal compromise ever.

However, the state of the art doesn't preclude heavy hitters from bullying an appropriate usage user into submission. I won't name names. They're still in business and will come down hard on even a nominal or incidental usage or fair usage just to make a point, ostensibly, to protect their intellectual property from dimunition of value.

Xerox went through that circa 1965 with the coining of their name brand trademark term as a transitive verb. I can only imagine how the U.S. Defense Department's ursurping George Lucas' term Star Wars unsettled him.

Anyway, most days I can barely afford to pay attention, let alone hire an intellectual property lawyer to defend me against a meritless infingement lawsuit. So I err on the side of extreme caution, know who's who and what's what in terms of the limits of my dsicretionary usages, ask permission when in doubt or leave it out when in doubt, preferring my own inventions over those of others for the sake of the art.

[ January 09, 2012, 11:39 PM: Message edited by: extrinsic ]
 

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Posted by LDWriter2 (Member # 9148) on :
 
Ken I kinda like All-Mart. You can find everything there.

Actually, I may have seen that one in a book
 

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Posted by shimiqua (Member # 7760) on :
 
I think it depends on the story. If you are setting the story in this world we actually live in, then nothing will pull me out of the story faster than a random reference to some made up store because of fear of liability.

I say it's always better to err on the side of believablity. In one of my stories, two characters meet at Costco by a sample for bagel pizzas. If I called it Costmart, or something, then it would destroy the thought that this could happen in real life.

I think if the story is set in the future, or in an alternate reality, then sure you can S-Mart it up, but if the story you are telling is set in a world with Walmarts, then you should be truthful and say Walmart.

Most of all, though, just write the story the way it comes to you, and don't worry about Walmart suing you. Have you seen People of Walmart? If not, google it.

If Walmart isn't suing that website, then I seriously doubt they would sue over a short story, especially one that hasn't been written yet.

Happy writing!
~Sheena
 

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Posted by Treamayne (Member # 9700) on :
 
Butcher has Dresden reference Burger King at least once a story, it seems.

Also, keep in mind that using fictious psuedonyms isn't always a safe route. When Underworld released, they were sued by White Wolf (makers of Vampire the Masquerade, Werewolf the Apocolypse) even though they used different names for almost everything (except Abomination - a werewolf turned vampire). I won't get into if they actually used those games as source material, the lawsuit was settled out of court; but the instance that names were changed didn't stop the idea that the concepts might have been borrowed heavily without permission. Hence, the lawsuit.

It seems casual references to trademark names (brands, stores, etc) are fairly common in fiction though.
 

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Posted by Crystal Stevens (Member # 8006) on :
 

quote:

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Originally posted by Treamayne:
Butcher has Dresden reference Burger King at least once a story, it seems.

Also, keep in mind that using fictious psuedonyms isn't always a safe route. When Underworld released, they were sued by White Wolf (makers of Vampire the Masquerade, Werewolf the Apocolypse) even though they used different names for almost everything (except Abomination - a werewolf turned vampire). I won't get into if they actually used those games as source material, the lawsuit was settled out of court; but the instance that names were changed didn't stop the idea that the concepts might have been borrowed heavily without permission. Hence, the lawsuit.

It seems casual references to trademark names (brands, stores, etc) are fairly common in fiction though.

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