The Cure for Trademark Bowels
September 6, 2012
Dead of Eve is less than two months from going to press. Since I’m not stressed out about the endless things I have left to do (you can smell my sarcasm, right?), I’ve let my momentum clench into a tight fist of constipation as I fret over whether or not I should be using brand names in my manuscripts.
Too often, I’ve turned sentences over and over just to avoid the use of a trademark. But sometimes the reference is compulsory. A couple examples from Dead of Eve:
- …outfitted a tactical custom radio, a first aid pouch, and mag pouches for his M4 carbine and Glock 19 pistol. Married to a gun dealer for fifteen years, I’d learned to catalogue the details of his equipment.
- Empty mattresses lay on the bunks. Metal blinds covered the windows. A fucking Ritz Carlton.
- “Then throw us a bloody Sharpie, why den’ he? We’ll just draw ‘Do Not Enter’ zones on your body.”
Sure, I could go back and generalize all the instances where I let brand names slip in. That is, if I wanted to comb through my 120k+ word manuscripts and find them. Screw that. I’d rather fight off a horde of zombies with a toilet plunger. So, I researched best practices on the subject.
The concerns:
- Trademark diarrhea: Watering down brand names in way that makes them nondescript. For example, Google doesn’t want you googling. They want you surfing for laxatives using the Google search engine. Band-Aid doesn’t want you to band-aid your hemorrhoids. They want you to cover them with a Band-Aid adhesive. Typically, you can avoid a lawyer’s letter by capitalizing the trademark.
- Trademark desecration: Using a brand name in a context that might be perceived as shoddy, scandalous, offensive, or being falsely accused of something it’s not. For example, Glock might not be too keen if your hero’s Glock handgun misfires, causes an explosion in the barrel, and its defectiveness kills the constipated patron squatting on the toilet one stall over. Best to use a fictitious brand name in that scenario, or expect seven shades of legal shit all over your shoes.
Anyone agree or disagree with my conclusions? Or maybe you just want to comment on the immaturity of my bathroom humor.
After draft two, I changed the Harry Potter reference in TGW to something else for fear of being sued. Depending on what names you use, you could date your story by using them. For example, will we even be using iPods in ten years? On the other hand, I see brand names in novels every once in awhile and the authors get away with it. So I don’t know. I’m not very helpful!
I tried to find out the result of the “KMart sucks” lawsuit with the Rainman movie. I spent a whole *THREE MINUTES* looking with no luck.
Having said that, unless you say something sucks or blatantly hate on something, you should be fine. I concur with your conclusions. I’m sure that makes you feel better already.
Overall, this sounds like you could get into a pretty ‘shitty’ situation. I certainly wouldn’t want to delve the ‘bowels’ of the ‘bloated’ legal system to try to ‘push through’ to a resolution. My opinions are based on ass-umptions, so if I turn out to be ‘full of shit’, please don’t think of me as an enema… er, enemy. (ok, that last one was a bit of a stretch. I do not apologize)
–j–
@Lindsey: You’re right. But I just gotta say, it’ll be a cold day in hell if Glock is no longer around.
@J: I think I ruptured my spleen (is that possible?) That last one was a bit of a stretch? They are sometimes, aren’t they? Really, that was fun. Thanks for the laughs! Oh, and for the record: KMart does suck. Sue me.
Aah! The hidden benefits of writing far future sci-fi. I actively avoid anything that could be misconstrued as a present-day reference 🙂
Right there with you, Ian. Fantasy also allows for avoiding issues like this!
–j–
These explain it pretty well –
http://www.rightsofwriters.com/2010/12/can-i-mention-brand-name-products-in-my.html
http://www.avvo.com/legal-answers/use-of-trademarks-in-fiction-422212.html
Then there’s always being creative with names, like Glickster or Booger Queen or Trendy’s or Glitz Charlton, so then you can be derogatory to your heart’s content and claim you don’t know what the heck they’re talking about. Or not.
Until relatively recenlty, Ellora’s Cave made all authors list every brand name they’d used in the novel in a section at the front. They must have been worried about copyright but for some reason, they don’t require us to do it now. The ONLY company you have to be very cautious about – apparently – is Disney whose lawyers are on you very fast if you use anything associated with them.
So – yes, be careful if you’re rubbishing someone’s intellectual property – best in those circumstances to waffle. Otherwise – use what you like so long as you don’t make your story dated. Also look out for dates in another way – I used a ref to Harry Potter books and then realised one one would have been out when my character was around. I also used a Star Wars figures ref and got the date of that wrong too. All spotted by me or my editor fortunately!
@Barb: Those little cited trademark lists preceding the chapters are what spurred me worry over this. Thanks for the insight.
I agree with everything that’s been said here. Stories have more empathsis if Evie wipes out her Glock and fires it, then if she wiped out her automatic pistol and fired it. My guess is Glock, or any name brand doesn’t mind the free advertisement as long as its used in a good way. Now in the case of the problem with the gun in the toliet, yeah, they might have a problem there. Unless you showed the owner of it not caring for the weapon properly.
Now, I did consider your comments and think of my story. I hope Boeing doesn’t mind me crashing a 737. Hopefully, when when they see if wasn’t the airplanes fault, they won’t. Somehow, a Spiffy Aircraft rejected its takeoff and crashed off the end of the runway doesn’t have as much impact to the reader.
But, I should keep trademark references in mind in my next story. I’d hate to have Kyle’s namebrand condom tear and impregnant a character and get in trouble with the the condom manufacture as well as parental issues.