posted
Okay, so I was writing the other day and I had my main character give a Snickers bar to a kid who looked pathetic enough to make The Grinch bawl like a colicky newborn. But then I got to thinking...can I do that? Can I use a specific product from real life, simply because of the generic familiarity it represents, in a story...without asking permission? I mean, many authors feature real items in their books.
Tom Clancy used Heckler & Koch firearms in his Rainbow Six novel, and I know I've heard someone say "toss me a Coke" in a book before, but how many authors actually go about asking permission before putting something like that in a story? For example, referring to a car as a 'sedan' over and over again would get pretty boring. But would there be repercussions to naming a specific brand and model (say, a Ford 500), without physically acquiring permission from the manufacturer?
I'm not talking in strict terms of legality here, but ruminating in a more practical sense. What do you see in current, published fiction...what do you see authors 'getting away with,' or the converse?
It just bothered me to no end. If something so pervades a culture (like the aforementioned 'Coke'), how do you come up with another way of describing it without losing the original impact, or slipping completely out of context?
This isn't a really big issue, and I suppose you can write around it often enough without great difficulty, but I just thought I'd see what the rest of you thought.
Inkwell ----------------- "The difference between a writer and someone who says they want to write is merely the width of a postage stamp." -Anonymous
posted
Hey! Companies pay to place products in movies maybe we can start a trend where they pay to place them in novels. LOL! Just kidding. Legally as long as the product is protrayed in a good light I'm sure there wouldn't be any issues or complaints but that's just my opinion. I think I'd rather have specifics- Snickers vs. candy bar- when reading. It points to character developement and preferences etc.
Posts: 92 | Registered: Aug 2006
| IP: Logged |
In some cases I won't use brands because it's irrelevant. (I would say "watch" rather than "Timex," because who cares if a watch is a Timex?) But I'll never have a character drink a "cola," because people talk about cola only in ads. If they're from the South, they'll be drinking Coke.
posted
I wouldn't hesistate. The only complaint I've ever heard from a company is that you use their product properly in the story. For instance, not every crawler tractor is a CAT; not every soft drink is a Coke; not all foam is Styrofoam, etc.
posted
If you are referring to the actual product trademarked under that name, then your reference to it by name has no adverse impact on the trademark, even if you make derogatory statements about the product. A trademark problem only arises if you use the trademarked name to refer generically to products that are similar or specifically to a product that could be mistaken for the trademarked product. This becomes a particularly delicate issue when using a trademark for one product in a commercial for a competing product, like saying (or showing) "Coke" during a Pepsi commercial. Furthermore it has been demonstrated scientifically that it is counterproductive to refer directly to the competing product in commercials, ideally, the consumer will be induced to forget the other product as much as possible. So very often producers of a product (including works of art) that has a strong trademark potential will strive to disassociate it from other trademarks simply as a matter of self-interest.
Now, if you make slanderous statements about the manufacturer of a trademarked product and label those statements as non-fiction, then the problem isn't trademark infringement but libel. If your "fictional" work is clearly a thin disguise for a libelous attack, then the fact that you call it fiction will not necessarily save you from liability.
But that is true whether or not you use the trademarked term. In other words, there is no connection between the trademark issues and the libel issues.
posted
I think it might have been Fay Weldon (UK) who had a contract with Cartier or some other diamond mob to stick their jewellery in her novel. Apologies if I got the author wrong; almost certainly I got the diamond mob wrong. See, product placement doesn't work in my case, I just forget the details they want readers to remember. Why not put a blank in the product name and when you get interest from publishers, ask your agent to send the manuscript around to chocolate bar companies requesting them to bid for the space?
Posts: 0 | Registered: Feb 2008
| IP: Logged |
posted
What I found funny was how Michael Crichton used Toyota Forerunners and... some other prominent trademarked item that got switched in the movie of Jurassic Park. Something other than the unix system. <_<
I actually ran into this same problem about M&Ms in my WIP.
[This message has been edited by franc li (edited December 11, 2006).]
posted
Yes, you can use real products in books. There may be some trouble in movies when companies don't want their product associated with something which they don't fully support or approve. If the kid had a peanut allergy, though, your MC could be in real trouble!
Posts: 283 | Registered: Feb 2006
| IP: Logged |
posted
In Locus in the past few years, a very well-known writer's name has been amended by a trademark sign or somesuch. Though I've been able to appreciate the value to entertainer (including writers) of trademarking your name, it seems a little much to get any pubication that prints your name to do that.
(I grew up in a town where one of the leading industries involved making Smith Brothers cough drops. Maybe you remember the two brothers, who often went by the names "Trade" and "Mark," 'cause that's the way it was written under their pictures on the jars and boxes (and eventually bags.) If they weren't the first to do this sort of trademarking, they were among the first.)
posted
Leaf through a copy of American Psycho by Bret Easton Ellis, or better yet, read it. Lots of product references are used in the novel to illustrate the character's obsession with style and class. There are no trademark issues or restrictions inherent in referencing product names in a work of literature. You can make derogatory references to the product if you choose without fear or limitation. Or, as with American Psycho, associate the product with the "bad guy."
Generally, only living people can be slandered or libeled. Not products, places or things. The only exception I can think of relates to some products in jurisdictions that provide a cause of action for slandering or libeling the local produce. These are specific statutes designed to protect local economies, typically agriculture. For example, Texas, which protects its meat/cattle industry in this way. (Remember a few years ago when Texas cattlemen sued Oprah for making derogatory comments about Texas meat. Oprah won.) But this shouldn't be a problem in a work of fiction. Plus, these laws are still rare and I've never heard of one that is specific to a brand name or trademark.
posted
Well, there's brand dilution, and the Coca Cola company wrote nasty letters to linguists who studied the use of "coke" to mean "carbonated beverage". The other legal issue is interference with friendly relations or public goodwill, I forget which.
Posts: 366 | Registered: Sep 2006
| IP: Logged |
posted
Brand dilution is a trademark infringment reason/argument that applies to trademark violation claims involving similar or misleading trademarks. For example, branding a soft drink Koooka Cola. But does not apply to referencing a trademark or brand name in a work of literature or non-fiction.
posted
so long as its fairly universal or the meaning is easy to grasp without requiring a laboured and poorly disguised explanation ie:
'Hey!' said Billy, 'Toss me a Skaurnacht™.' Tommy tossed Billy a little, black, salt-water liquorice pellet commonly eaten in holland by little dutch kids in the 1970s, which, of course, is the setting for this story — in case you missed it. 'Mmm. Thanks.' said Billy
perhaps this seems obvious
Of course, if it was set in Nazi Germany it would not be "Hans! Toss me a Coke™. It would be "Hans! Toss me a Fanta™." . . . . . . . . . .
[This message has been edited by hoptoad (edited December 12, 2006).]
posted
To use the brand name without specifying the item it brands is the problem, and since no one says "Hans, pass me a Fanta soda" it's better to leave it "pass me a soda".
I suppose "Snickers bar" might be okay. Just plain "Snickers" is not. Now the degree to which one is likely to get into trouble for doing it is a separate question.
posted
It's fine as long as it is a Snickers bar. If you call it a Snickers but then say that it's made by Hershey using a blend of toffee and toasted coconut hand-dipped in Belgian chocolate...then you might have a problem, because you are referring to something that is not a Snickers bar. But as long as you describe something made by Mars Inc. that they have in fact called a Snickers bar, then you are in no way infringing or diluting their trademark.
Now, it becomes a bit of a problem in a future setting if you want to refer to something that you think Mars Inc. might eventually make and call a Snickers. Then it becomes a bit fuzzy, since they might be appalled at the idea of...say, Snickers octopus-flavored tofu. But even with that, you're pretty safe as long as you assert the claim of it being a Snickers is valid on the basis of Mars Inc. deciding it is a Snickers.
You could also write a story in which Mars Inc. has lost the Snickers trademark through some means. As long as you make it perfectly clear what Snickers is "supposed" to mean and distinguish that from the meaning it has gained, you aren't the one violating their trademark. The violation of their trademark is then a fictional event, much like a fictional murder. However, the "supposed" does come into play. If it seems that the intention of your story is that Mars Inc. should lose the Snickers trademark, then your story is an infringement of the Snickers label.
Perfectly okay:
quote:Walter's chewed his Snickers listlessly. "Man, these just haven't tasted the same since Mars Inc. folded."
Riley eyed him for a moment. "That's because you were about six years old. Of course you liked them better when you were a kid."
"No...they really used to taste better. I think those guys at Guixuang did something funny to the recipie."
Maybe not so good.
quote:Walters bit into his Snickers with delight. "I'm so glad that blood-sucking capitalist organization lost the power to deprive us of the right to call this bar a Snickers. It tastes so much better now that we have gained the trademark rights."
Okay, back to reality. If it's a Snickers bar, then just call it that. If it isn't, then don't. It's really that easy.
posted
I wouldn't have guessed that. The Chinese seem to have a minor blind spot when it comes to control of the world's chocolate supply...or maybe they know something the rest of us don't Posts: 8322 | Registered: Aug 1999
| IP: Logged |
Let's go to the statute that provides a cause of action for trademark infringement:
quote:(1) Any person who shall, without the consent of the registrant—
(a) use in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive; or
(b) reproduce, counterfeit, copy or colorably imitate a registered mark and apply such reproduction, counterfeit, copy or colorable imitation to labels, signs, prints, packages, wrappers, receptacles or advertisements intended to be used in commerce upon or in connection with the sale, offering for sale, distribution, or advertising of goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive,
shall be liable in a civil action by the registrant for the remedies hereinafter provided.
As I understand it, what it boils down to is that you aren't infringing on someone's trademark if you aren't using the trademark for marketing purposes in a way likely to cause confusion.
So, if you title your book Snickers and have a picture of a Snickers wrapper on the cover, people might be confused into think that your book is some sort of official Snickers publication. That is potentially infringement.
But just using the word "Snickers" inside your book would not be infringing on the trademark, even if you use it for octopus-flavored tofu or as a generic word for candy. You are not using the trademark for the marketing of the book, so it won't confuse people as to the source of what they are buying (which is the fundamental reason for trademark protection).
And even if you are using the word generically because you want Mars, Inc., to lose its trademark, you are not infringing on the trademark because you're not using it for marketing. Mars may write you a letter telling you not to use "Snickers" generically, but that's because they need to demonstrate that they are actively protecting the trademark. It doesn't mean they have a legal claim they can enforce against you.
posted
The line between an attempt at marketing and a work of fiction is decided on a case by case basis. If your use of the trademark appears to be an attempt at marketing (i.e. a deliberate attempt to dilute the trademark) to a judge, then it doesn't matter that you're claiming that it's simply a fictional portrayal.
If Mars Inc.'s lawyers can show that your work is mainly an attempt to dilute/attack their trademark, then it can be considered marketing. Admittedly, that can be a very high bar for them to hurdle, unless your story is virtually nothing other than an attack on their trademark which you've self-published rather than selling to a market. But if they can show that your intent is advertising rather than literature, then you're in trouble. So I guess you'd better make sure it's a darn good story
posted
Funny you should mention that. Just recently somebody published a biography of Milton Hershey, and the Hershey people took them on over some details included in the biography, and also the design of the book jacket. You can carry proprietary interest too far...
Posts: 8809 | Registered: Aug 2005
| IP: Logged |
posted
Well...if the cover design made it look like it was a product of Hershey Company rather than an independent biography, there could be legitimate trademark concerns. I don't think it's likely they were ever interested in more than a clear disclaimer on the book cover stating that it wasn't an official Hershey Company product (which is a very real possibility, in fact I'm almost certain that Hershey Company does sell such a biography, and it probably does bear a picture of a Hershey's Bar on the cover). Some people might claim that they were after more than that, or overlook the fact that Hershey's does sell a lot of merchendise based on that particular trademark image. I personally think that paying $20 for a tin can with a Hershey's logo on it is a sign of mental instability, but Hersheys does sell such tin cans, in several sizes, and bookbags, and shirts, and a number of different books (some of which are recipie books featuring desserts that won't be ruined if you use their sub-standard "chocolate", which actually makes sense as a Hershey's Company product).
Posts: 8322 | Registered: Aug 1999
| IP: Logged |
posted
Actually, my intent was to illustrate how thoroughly Mars, Inc. had permeated colony culture in the 2290s, down to the very treats distributed (as per army regulations) to wandering urchins in search of a high calorie source of nourishment.
Than again, I had also planned to illustrate that virtually all of the gear strapped to the soldier's body was emblazoned with "Mars."
"Here, Johnny...have a 'Mars' grenade."
"Gee, thanks Mister!" Plink!
But seriously, thanks for clearing that up, everybody. I was also reading Uncle Orson's latest book (Empire), and found references to a PT Cruiser (hah...it seems we both scoff at generic sedan-SUV references!), The O'Reilly Factor, and several other notable brand names, items, and entities.
I feel a bit safer now.
Inkwell ----------------- "The difference between a writer and someone who says they want to write is merely the width of a postage stamp." -Anonymous
posted
You know, it's interesting that...Hershey's actually makes a lot of stuff that's really good. So why do they choose to brand themselves on their worst product? I mean, you see that image on something and you can't help but think of that waxy, bland, crumbly chocolate bar in the plain brown wrapper. It's like saying, "We make your least favorite form of chocolate, but we also make this!"
Maybe the very badness of the Hershey's Bar as food is what makes it so brandable as a logo for all manner of non-food and non-food-related items. It's like, by seeing that, you brace yourself for your least favorite chocolate, and then you find out that you don't have to eat it after all. So you're not badly disappointed over the lack of edibility, yet you can also trick yourself into thinking that the logo is referring to one of their products that you'd really like.
Or it might be because some of their better products come in a form where they aren't ready to eat and need a non-disposable container, and they sort of took off from there. Or just possibly I'm overthinking this. Maybe people in marketing think that the Hershey's Bar is really their best product.
Constructed in June of 1994, and modified by Sampson Steel Company in 1996, this 20 foot Chocolate "Waterfall" is believed to be the largest of its kind in the world. Using an idea conceived by Alaska Wild Berry Products' owner Peter Eden, Homer artist Mike Sirl designed and built this Chocolate "Waterfall." It contains 3,400 pounds of real liquid chocolate donated by Peter's Chocolate Division of Nestle Foods and Guittard Chocolate Company.
The picture doesn't do it justice. That stack of chocolate bars in the foreground? They are chest high.
posted
A write-up or review (I forget which) on the aforementioned Milton Hershey biography mentioned in passing the popularity of "milk chocolate" here in the USA, something that Europeans evidently find puzzling as they find it kind of bitter. (I like it. I wouldn't make a batch of chocolate chip cookies unless I have some milk chocolate chips on hand.)
Posts: 8809 | Registered: Aug 2005
| IP: Logged |
posted
That chocolate waterfall thing is just soooo wrong.
Sometime I'm going to have to find an excuse to buy another of those ten-pounders. The trick is that you use about one pound to make moulded candies, then you just eat the remainder. Or you can just be a total barbarian and not even pretend you bought it for any other reason than to chop it up and eat it "chunky"
It's amusing that Europeans find "milk chocolate" puzzling, since they were the ones who invented it.
posted
Hi, Not that this counts for much but my only real experience with american chocolate was with hershey kisses and I found them very dry and crumbly. Are they usually that way or was it most likely the result of having been through the mail?
Have any of you seasoned travellers noticed whether the people of different countries have generally the same prefernce in choclate ie taset, texture etc? These sorts of questions haunt my sugar-vexed mind this time of year.
ps: Do you guys have Cadbury? I live about a mile from a Cadbury factory and it sells direct to the public.
here's to an expanding waistline
[This message has been edited by hoptoad (edited December 20, 2006).]
posted
Ironically, I live about 20 minutes from Hershey, Pennsylvania...where all those supposedly horrid candies come from. I do have to say that getting the chocolate directly from the source works out better than long-sitting store-bought endeavors. And yes, I've consciously compared the two. Heck...if you just drive down the main street of town in Hershey (a quaint place, really) you can smell the fresh chocolate. The scent permeates the air. It's a lot of fun, actually.
On the other hand, I must say that I prefer Reese's cups to Hershey's chocolate of any kind...though Hershey's owns Reese's, so I suppose they're related.
And yes, hoptoad, Hershey's kisses tend to be crumbly...but not when they're very fresh (as in, from the closest thing to a factory direct store you can get...at Hershey's 'Chocolate World').
Inkwell ----------------- "The difference between a writer and someone who says they want to write is merely the width of a postage stamp." -Anonymous
posted
Hershey's Kisses are made with their standard, low-grade stuff that's the same as what they put in the Hershey's Bar. The main problem with both is that they have a lot of wax in them, which dulls the taste and makes the chocolate "crumbly". Reese's Cups do not use as much wax, which makes them meltier and gooder Hershey's actually makes a number of fine products that use real cocoa-butter based chocolate, it is quite strange that they choose to identify themselves with their least delicious chocolate product. Almost as strange as the fact that they sell so many "Hershey's" products that are totally unrelated to foodstuffs, like the aforementioned bookbags and such. I guess it's all reflective of how important that plain brown trademark is to them...they really treasure it for some odd reason.
Posts: 8322 | Registered: Aug 1999
| IP: Logged |
posted
American chocolate is very bad. I'm not bashing America; I'm an American born and raised. I lived in Germany for a couple years, though, and I lived with a Swiss guy for a while. Germany and Switzerland both have VERY good chocolate. After a couple years of that, all the American chocolate I had always loved before tasted like eating chunks of wax. My mother would send me care packages full of candy, and I would just throw all the chocolate out (except for the Reese's, not because the chocolate was good, but because you can't get peanut butter easily in Germany, which is a travesty).
Posts: 1528 | Registered: Dec 2003
| IP: Logged |
posted
Myself, I wouldn't plug a brand unless they were sponsoring the work, but that's just me. The only cases where I recall real products showing up in fiction with any regularity is firearms and automobiles. Nobody seems to care about people driving Corvettes or shooting Smith and Wessons in fiction, so I don't know that there would be a problem with a Snickers bar.
Posts: 612 | Registered: Jul 2005
| IP: Logged |
posted
Well, unless you're going to create a fictional product each and every time your character picks up something---a draining philosophy of writing---you're better off just naming it as is.
If it forms a major plot point---say, your character commits a murder and leaves a candy bar wrapper at the scene of the crime---you might consider an original name.
At least using the "real names" will give your world an air of versilimitude...am I spelling that right? It's not in my big Webster's...
Printer-friendly view of this topic
.
