Ask Author Law

Using trademarks in fiction.

November 24, 2014

Tags: Trademarks, Author Law, Writing, Sallie Randolph, Authorlaw, Copyright, Publishing, Books, Contracts, Contract Termination, Collaboration Agreement, Writing, IP Law, Intellectual Property

Ask Author Law is a Q&A blog about legal issues for authors. I am a practicing attorney, freelance writer, and publishing consultant. I focus my law practice on the representation of authors, often consulting with or serving as co-counsel to other attorneys on publishing cases. This information is for general purposes only and is not legal advice. Asking a question or reading an answer does not create an attorney-client relationship.

Q: I am writing a novel and was told by an editor that I must remove the words “Ford,” “Greyhound,” “Chrysler,” etc. or be prepared to fork out royalties. I've never been told this before, and don't know what to do. I've researched trade name law but can't find anything pertaining to this in particular. If I'm using say, “Ford,” for example, as simply stating what it is my character drives, (i.e. Ford pick-up, etc.) does this pose legitimacy to said editor's advice? Any information you can share is most sincerely appreciated.

A: This editor is way off base. Of course you can write about trademarked products in your fiction. What the trademark protection prevents you from doing is marketing your own automobile under the brand name of another or using the trademark in commerce or advertising without identifying it as a registered trademark. Your proposed use is legally acceptable and the editor is incorrect. Which leads me to ask just how credible this editor is about publishing issues. Is this someone you plan to do business with? If so, please be careful.

One point to consider -- most of the time when you write about something that has trademark protection you should capitalize. That's courteous and correct. You do not need to use a trademark symbol in editorial copy.

Comments

  1. February 6, 2015 8:12 PM EST
    What about using brand name for the purpose of making money?
    If you use a brand name to state a fact then its okay but if you use that brand name as part of your story then you're bound to ask permission to use it. For example if I want to write a story and want to use your name not as a fact or reference but as part of my story, then wouldn't say your permission is required?
    - Yves Beauregard
  2. February 8, 2015 10:43 AM EST
    Thanks for your thoughtful comment. Even if you are paid for your writing, use of Trademark names is OK as long as the use is editorial, rather than commercial (as in advertising). Novels, articles, short stories, and poems are all examples of editorial use. So it's not whether you make money, is HOW you make money that counts.
    - Sallie Randolph