Using brand names in fiction

[Exit1]

Hi,

I guess my question applies to Missouri if any state. I'm a bit confused about some of the laws regarding using brand names in fiction, particularly a fictional novel. I understand the concepts of dilution and infringement. My questions are mainly about defamation vs. parody because I've seen some conflicting information about that. Take the following sentence as an example:

Jim Smith went to the store to buy Adidas shoes because Jim loved Adidas shoes.

1. Now it turns out that Jim Smith is in fact a notorious con-artist and thief. Would Adidas be able to say, "We don't want our product being associated with con-artists and will take legal action."?

2. Can Jim go to the store to buy Cadidas shoes? Or can Adidas say, "That's obviously our product, we don't like it being parodied."?

3. Can Jim go to the store to buy Badidas or Sadidas shoes? Or can Adidas say, "We think that makes our product sound "bad" or "sad" and we don't like that. We're going to take legal action."?

4. If 2 and 3 are both okay on their own, if Jim is still a con-artist do they become not okay?

5. I know you can't have book titles or the front cover have brand names on them, but what about chapter titles? Could there be a chapter called "Jim Buys Adidas/Cadidas/Badidas!"?

From the reading I've been doing it sounds like it's best to just make up your own completely fictional brand names when possible, but I just thought I'd check.

 

[justalayman]

regardless of the true legal rights you may have to use a name, if the brand you choose to use or mimic in some way takes issue with it, especially when you are talking huge corporations such as Adidas, you have to consider the possibility they will throw money at a suit to urge you to see things their way. If you cannot or don't wish to engage such an corporation in this way, it would be in your best interest to do your best to avoid causing them to take notice of your work.

Some companies are notorious for filing suits to "protect" their rights, even when their target has done nothing improper. The suits are similar in intent as a SLAPP suit is against people that say things a company may not like.

 

[quincy]

Hi,

I guess my question applies to Missouri if any state. I'm a bit confused about some of the laws regarding using brand names in fiction, particularly a fictional novel. I understand the concepts of dilution and infringement. My questions are mainly about defamation vs. parody because I've seen some conflicting information about that. Take the following sentence as an example:

Jim Smith went to the store to buy Adidas shoes because Jim loved Adidas shoes.

1. Now it turns out that Jim Smith is in fact a notorious con-artist and thief. Would Adidas be able to say, "We don't want our product being associated with con-artists and will take legal action."?

2. Can Jim go to the store to buy Cadidas shoes? Or can Adidas say, "That's obviously our product, we don't like it being parodied."?

3. Can Jim go to the store to buy Badidas or Sadidas shoes? Or can Adidas say, "We think that makes our product sound "bad" or "sad" and we don't like that. We're going to take legal action."?

4. If 2 and 3 are both okay on their own, if Jim is still a con-artist do they become not okay?

5. I know you can't have book titles or the front cover have brand names on them, but what about chapter titles? Could there be a chapter called "Jim Buys Adidas/Cadidas/Badidas!"?

From the reading I've been doing it sounds like it's best to just make up your own completely fictional brand names when possible, but I just thought I'd check.

A trademark holder can sue you over your depiction of their product in your fictional novel. There is nothing you can do to prevent that. All you can do is make sure when you write about any rights-protected product that you do not damage in any way the reputation of the brand or trade off the name of the brand to attract consumers to your novel or confuse consumers into thinking the trademark holder is in some way connected with you or your novel.

1. If the connection between the shoes and the character wearing the shoes is incidental and the shoe brand is mentioned for descriptive purposes only (to add a touch of reality to the story), there is little the trademark holder would have to sue over. Using trademarks in a descriptive sense (calling a car a Mustang, calling a can of soda a Coke) is allowed.

2. It is not smart to change the trademark in this way. Either use the real name or make up an entirely new name.

3. Again, it is not a parody to change the name in the way you are suggesting. It is an attempt to disguise the name but the disguise does not work. Either use the trademark in a descriptive way or, if the product is to play a major role in your book (magic shoes or whatever), it is better to make up a brand name.

4. Con artists can drive Mustangs and drink Cokes and wear Adidas. Disparage your fictional character all you want but do not disparage the products.

5. I would avoid the use of brand names as chapter titles. Again, use the products as products, ones that appear in your novel as they would in real life, but do not use them as characters in your novel - at least without permission of the trademark holder.

Using real names - of places and things - can make your novel feel more realistic. Writing about Detroit and naming the streets and restaurants provides color. Wearing brand name clothes can make a character come alive in a reader's mind. Just remember that you are handling valuable reputations when you write and you must handle these reputations with care.

I recommend you have your manuscript reviewed by a publishing law professional prior to making your book available to the public, for a review and editing.

Good luck.

 

[Exit1]

Thank you both very much.

I think I will eliminate brand names as much as possible and then and have it professionally reviewed as suggested.

Thanks again!

 

[quincy]

Thank you both very much.

I think I will eliminate brand names as much as possible and then and have it professionally reviewed as suggested.

Thanks again!

You don't really have to eliminate all brand names, if to have them sprinkled throughout your book adds color. You just have to be careful how you use them.

A professional review prior to publication will help to keep your book lawsuit free (as much as anything can be kept lawsuit free).

We appreciate the thanks, Exit1. Good luck with your novel.

 

[TigerD]

On the flip side, you can always contact them and sell them the rights to have your character visit the Adidas store to pick up a pair of shoes.

TD

 

[quincy]

On the flip side, you can always contact them and sell them the rights to have your character visit the Adidas store to pick up a pair of shoes.

TD

If the author writes a Harry Potter or Hunger Games quality novel, that could entice Adidas to partner up.