The Storyletter - Including Famous Brands in Fiction
Can I mention brand name products in my fiction?The short answer is ‘yes’. However, it’s important to know how you’re using said brands to determine if you might be liable to legal action being taken against you. I must preface that I’m not a lawyer, nor am I a legal expert. Some of the following information was derived from a blog post written in 2011 by Mark Fowler, a New York attorney with experience in the publishing industry, and a separate post by Daily Writing Tips from 2011 by Mark Nichol. It should also be stated that this is regarding United States Common Law, and may vary depending on your country of residence. I recommend following up with independent research on your specific situation, or consulting an attorney for the most up-to-date information. This post will attempt to summarize what I’ve found during my own research on the subject for a story I’m writing. I’ve included other reputable sources linked in the article for additional context. I’ll also give examples of how I intend to use brand names. Is it against the law to use brand names?This could be a common misconception with writing fiction set in the real world. As I began writing a story last year, which included smoking cigarettes and lung cancer set in a real-world setting, and I added all sorts of brand names to make the story feel more real. Then I got paranoid. I questioned whether or not I was even allowed to do that. I’d read enough fiction to know that other authors had done it previously (Stephen King, surely!), but had they been given permission to do so? Was it because they were traditionally published and had lawyers? Or was it because the publisher secured the rights to include the necessary branding? So many questions! The bottom line is you’re free to use brand names in your fiction to any extent you’d like. It’s the risk of the very real possibility of being sent a cease-and-desist letter, or taken to court with a lawsuit, that a writer should ultimately be considering when publishing work that includes famous brands. Although, even that is unlikely to occur, but more on that later. First, let’s dive into areas of trademark law that concern fiction writers. Areas of trademark law to consider when writing
Defamation was definitely my main concern. I’d included famous cigarette brands in a story involving the main character’s subsequent cancer diagnosis. Even though it’s a well-known, studied correlation that smoking can lead to increased risk of cancer, I was worried that highlighting one brand over another might be misconstrued that I was stating as a “matter-of-fact” one manufacturer was more harmful than another. This would set me up for possible legal ramifications, therefore, I went with the tried-and-true method of creating a fictional brand that would take the full brunt of my potential disparagement. I’d also like to mention that it’s within your right to simply alter the name of the brand you’re referring to in order to avoid being held liable. It’s also not necessary for you to attach the TM or R to the trademarked, or registered, term. That is mainly done in order to signify the intensity a company would like to project over the seriousness of how far they will go to protect their brand. The nature of relative riskI mentioned before that it was unlikely, even if you used a company’s brand in a disparaging way, that you’d face legal retribution. It should be noted that I don’t recommend doing it. The reason I say it’s “unlikely” is that each instance of this involves varying parameters that weigh into the metrics of the case. For example, say I named a specific brand of cigarette in my story as being the cause of my character’s cancer diagnosis. As an author with a relatively small following on social media, the chance that the story would permeate the market to the extent it would damage the business of a major tobacco company and cause them to seek legal retribution over those damages is very slim. However, if someone like Stephen King, David Baldacci, Nora Roberts, Colleen Hoover (you get the idea) were to make the same exact assertion in one of their best-selling novels, it’d likely be within the company’s cross-hairs to take legal action. That doesn’t absolve anyone of risk, but it’s why I’m confident in saying it’s relative to the writer or audience size of the publisher. If I were to be contacted by a lawyer, it would be less likely a charge seeking damage compensation, and more likely a call to cease using the name of their brand in the story. In terms of fiction, there are other protections afforded to us in the sense that it can be deemed parody, or even fair use. But that’s open to interpretation and invokes the nature of ‘intent’ on behalf of the writer. That may need to be its own future post. Final thoughts on using brand namesSome companies are ruthless when it comes to protecting their brand and intellectual properties. Therefore, I’d caution against using a brand name negatively, even if it’s parody. Please note that this isn’t legal advice; I’m simply relaying information I found publicly available on the internet. Personally, the route I’ll be taking moving forward is referencing brand names sparingly, and only if it’s pertinent to the story being told. Otherwise, I’ll be altering the name somehow, or using a fictional brand in its place. The good thing is that I’m no longer paranoid about using brand names. I hope that after reading this article, you aren’t as in the dark as I was. If it’s a benign reference to a company that promotes them, they’ll likely never notice due to the sheer amount of writing that is published online, or if they do, they might consider it free advertising. Just make sure to take the level of precaution you think is necessary to tell the story you want to tell. Or, better yet, contact an attorney for the best legal advice on the subject matter. Happy writing! ~ WM Winston Malone is a writer of fiction with aspirations of finishing the stories in his head, learning about the publishing industry, making "indie" work, and helping others along the way. If you’d like to chat, message him at storyletter@proton.me.
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