Use of Trademark Names in Fiction

By Mark Nichol

A couple of years ago, a site visitor asked about the necessity of obtaining permission to refer to trademarked products by name in fiction. Here’s the specific query:

How is copyright dealt with in fiction writing? For example, if I sell a story where I wrote that a character jogged to Burger King in his new Reeboks, would there be copyright infringement? Do I need to get approval from the holders of the copyright to use their names in my stories? And, how would I go about doing that? How do I find out what is copyright protected and what isn’t?

And here, better late than never, is the response: Fortunately for the multitudes of authors who write fiction (and the innumerable publishing companies that print their books), writers are free, for the most part, to include trademarked names in their stories.

The passage in question is especially innocuous, because the references to Burger King and Reeboks are benign: Nobody in the novel dies from eating a Whopper, and no character is fatally run over in traffic because his running shoes are defective. But even if the author had implicated one of these brands in someone’s death, legal retribution would be unlikely; the sheer volume of media overwhelms any one corporation’s efforts to monitor for and suppress defamatory references to their products.

But risk is relative: If a writer with the stature of, say, J.K. Rowling had resorted to the plot device of a deadly hamburger or a dangerous pair of running shoes, her publisher would likely be sent a cease-and-desist letter. This terse request from the trademark owner would call on the publishing company to refrain from associating the company’s delicious and nutritious WhopperR brand beef-patty sandwiches or light but sturdy and comfortable ReeboksR brand athletic shoes with anyone’s death.

(Side note: The registered trademark symbol is never required; in commercial publications, it is often inserted to imbue one’s products with a protective aura or to refer to those of others, as a courtesy, to encourage reciprocity.)

To avoid such a consequence, an astute editor would likely request that Ms. Rowling excise such libelous references before submitting the final manuscript, thus avoiding the arrival of a letter referring to “possible recourse to further legal options to protect our valuable intellectual property rights.”

But your editor would likely do the same, perhaps suggesting that instead, you call the fast food franchise Hamburger Prince or the shoes Teezoks. Interestingly, assigning closely similar names, or describing companies or products that resemble real ones but are not named in their honor (or, often, dishonor), is fair play.

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42 Responses to “Use of Trademark Names in Fiction”

  • Rob

    Thanks for the clarification. I wish I had the popularity of J.K. Rowling so that I needed to be concerned about misuse of trademarks… 🙂

  • Deb

    I’ve a character who becomes quite famous, and her first name (Maybelline) becomes a household word. A TV station begins running little segments that show women from a distance who look like her, and they use the old “Maybe it’s Maybelline…” commercial tag line. Viewers have fun trying to determine if the woman in the oversized sunglasses is this famous person or not.

    Would using that tag line from the commercial pose any kind of a problem for me? There is nothing derogatory at all towards the cosmetic company.

  • Mark Nichol

    Wendy:
    Yes, you can refer to a character being employed by a company that exists in the real world. The only potential concern is if you imply or state that the company is doing or does something the real-life company would not want to be associated with.

  • Wendy

    I am writing a fictionalized short story which names a well-known newspaper in Chicago. It also mentions someone who was very famous who worked there but is now deceased.But in a positive way. One of my characters (not the protagonist) is portrayed as one of the current editors of this real newspaper who is hiring a columnist. In a fiction story, can I use the name of a ‘real’ newspaper and have one of my characters say they work there? Are there legal issues? If possible, a prompt reply would be appreciated, as I’m on a deadline to submit this.

  • Andy

    Hi, I have a question. I want to name a non-human character in a comic book series I’m working on, “spork”. I’ve read in various places that the term “spork” is trademarked. Now the character though non-human can speak, and is.. quite insane, to put it lightly. And the comic itself depicts a great amount of violent and gory situations. Though the character “spork” is as thusfar not a perpetrator of any of the violence. I can’t find anywhere who owns the “spork” trademark to ask them their permission for use of their trademarked name in my comic, but I was wondering if I could get in trouble for using it as a name.

  • João (Portugal)

    I just want to say thanks for this article. I have been wondering about this for years now and I have yet to publish my first book. This is one of the issues that was, in a way, causing my writer’s block.

    I’m Portuguese and the protagonist in my story is a young officer in the Portuguese army. It is an extremely difficult book to write because a lot of things can go wrong with it if I don’t do my research properly. I have, for example, tried to find as much information as I could on firearms. The standard issue rifle in the Portuguese army is still the 7.62mm G3 rifle, made under license from the German company Heckler & Koch. My first assumption is that there will be no copyright issues if I refer to it as “the G3”, the way everybody speaks about it, because that particular rifle (picturing it with a carnation sticking out the end of the barrel) has become an icon of the Portuguese 1974 revolution and has therefore acquired profound cultural significance in our country. Even despite its age, it is actually stilll cherished by many. That is why I see nothing problematic here: it is common knowledge that the G3 rifle was designed more than 50 years ago and is still standard issue in Portugal, as it is common knowledge that our Spanish neighbors have had the new 5.56mm G36, also designed by Heckler & Koch, for several years now. It is common knowledge that the G3 is not a poorly-designed rifle, but the ones still in use are worn out and do need to be replaced. Soldiers have commonly complained about the rifle’s weight, sometimes about its recoil, and the occasional jamming caused by the excessive wear. All of this, while detractive to the rifle’s overall reputation, is not “my” personal opinion: it is common knowledge, and even Heckler & Koch has to admit that even a perfectly-designed rifle cannot be immune to aging.

    My second assumption is: if I were to say that the Portuguese Army is going to replace the old G3 with the new G36 (even if it is a very realistic possibility and actually came close to happening before), then there would be a problem. Even if this is not my intention at all, the firearms manufacturer would not complain because it’s good publicity anyway, but people could see this as my interpretation of what “should” be the course of action, my personal preference, or even a not-so-subtle attempt at marketing. This, while not a copyright problem, could cause an entirely different problem: it could make me lose some readers, if they think I’m just a Heckler & Koch employee trying to advertise for his company or something like that. But certainly, Heckler & Koch wouldn’t like it if I’d replace the G3 with a rifle from some other company, that’s for sure…

    Frankly, both in terms of copyright issues and misinterpreted intentions, I have always thought that creating my own rifle design that could replace the G3, without making it excessively similar to any of the legion other designs available around the world, is actually a much easier workaround to this problem. I already have enough technical knowledge anyway, from all that research. And this article seems to prove I was right.

    But it’s good to be able to reflect on this. I guess I don’t have to be afraid of mentioning “the G3” anymore. I’m looking forward to hear what anybody else thinks about this and whether they think I’m right or not.

    No, I feel I am actually not overthinking this. 🙂

  • Mcadams

    I use gun names and car models in my books. I was wondering if I will get hit with a copyright infringement law.

  • Killion Slade

    It looks like it has been close to a year since the last comment, but I was hoping we could still ask questions.

    As a horror writer using real locations for an attack, would it be prudent to rename the place or could the city which owns it cause grief. Specifically – this is Lake Eola in Orlando. They have swan boats, and a horrific attack happens there. This is fiction, but ti depicts the place in a derogatory light. Would it be better to call it Lake Lola, instead?

  • Dean Dyer

    Thanks for a rapid and well-developed answer to an immediate question. I’m a playwright working on a comedy and have a situation in which the use of a trademarked name is integral to the plot of my latest work. Interestingly, the trademark in question is that of McDonald’s Restaurant Corporation, which makes your example citing Burger King a virtual direct hit. Now I have something to tell my publisher when she cries foul. McThanks!

  • Mark Nichol

    Joe:

    I’m not a copyright expert, but I see no reason why you should hesitate to use the coincidentally identical name.

    The only area of concern is if you write a novel featuring a company called Google; call it Oodles instead. In another book, there’s no problem with having a character use Google to perform a search, no more than having a woman hop out of her Volkswagen to buy a Lotto ticket and a Big Gulp. (But having her kick her crappy VW, complain about how Lotto is a big rip-off, and get ill from drinking the Big Gulp is a triple no-no. If you want to disparage, disguise.)

  • Joe Davis

    Interesting topic. A question regarding naming but a bit different than utilizing existing brand names.

    My father and I are putting the finishing touches on a book titled “The Googles” which he started in ’82 and has been collecting dust for many years. He is now concerned that since Google is around, are we in any way libel or in danger of a suit by using this title? One disclaimer: Googles have absouletly nothing to do with Google the company. They are creatures, not an entity. Nothing remotely regarding the internet or search engines, etc. in the novel.

    Also, I found another novel titled “The Googles” on copyright.gov with a fairly recent registration.

    Any thoughts or comments? Any information would be greatly appreciated.
    Joe

  • Mark Nichol

    John:

    Personal names can’t be trademarked. I recommend that those starting out as writers search for other writers using the same real or pen name. A would-be novelist named John Smith who finds that there’s another novelist by that name can use a middle initial or change his name. In your case, it’s probably best at this point to share the name rather than change yours.

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