Book Printing UK are here to set the record straight.
A lot of fiction is set in the real world, so it's natural that existing products and companies would be mentioned. But what if they're trademarked? Are you allowed to mention real products and companies by name?
The simple answer is yes - it would become tiresome to create fictional products and companies for everything that characters use and visit. There can be some legal issues around trademarks in fiction, but once broken down they are straightforward and hopefully easy to avoid...
What is Trademark Infringement?
This is the unauthorised use of a name that is likely to cause confusion about the origin of the goods or services. For example, if you created a floor cleaning product and called it Fairy, then the company Proctor and Gamble (who produce Fairy washing up liquid) would have a case for infringement. Your product is not the same as a Fairy product, but is close enough to cause confusion with consumers about whether your product is manufactured by, endorsed by or has any relation to P&G's Fairy.
In fiction, as long as you are using the brand name to refer to their own goods, then this is considered nominative fair use and doesn't constitute infringement.
Using a name that sounds familiar to the product in question (such as calling your washing up liquid Pixie) makes it seem satirical or a spoof, and is usually fine so long as it is not damaging to the actual brand you are referencing.
Infringement also falls under copying (because you can’t exactly borrow) a significant amount of work from other copyrighted work. If the work is well known, even something as little as eleven words could be enough to face legal action. If you’re going to copy – don’t.
Copyright and Defamation of Character
Copyright isn’t just one right; it’s a bundle of rights.
It’s always worth having a passing interest in law if self-publishing is a route you wish to venture down. It helps to know about the practical side of things and ensures you don’t trip up as you’re starting out, especially as there are very little case studies and examples to draw information from in the UK.
Before you publish a book it is imperative that you own or have permission to publish all of the contents that are contained in your manuscript. This also includes images. As the author you need to make sure your book does not contain anything libellous that someone might take offence to.
You are likely to run into more legal issues if you falsely depict a trademarked product as being dangerous or faulty. A manufacturer could complain that any disparaging depiction of their product could cause damage to their reputation. The onus is on them to prove this - that readers are taking the information as fact rather than fiction, but it's still a lot to go through when the simple solution is to create a fictional company and product.
Remember when you are self-publishing in most cases it will be up to you, the author, to make sure your book does not break any copyrights or contains anything libellous against an individual or groups. This is also the same for using celebrities and other real people in your story.
Above all else, it’s a marathon, not a sprint – you must be prepared to wait and be patient.
If you do ask for permission and don’t hear back – never assume that it’s okay to then use. It’s been noted that some places will not respond but they will keep an eye on your work to see if you do use the work of others – and then pounce.
The biggest thing to note (and that can be seen as a problem if you wish to publish internationally) is that copyright laws are different in each country. So it is always worth having a conversation with a publicist of each country you wish to sell in to be sure you’re not stepping on any toes.
The Facts about Trademark Dilution
Trademark dilution is when brand names are generalised and are used as generic terms. For example “hovering” instead of vacuuming, “googling” instead of searching on Google, and “sellotaping”, etc. Similarly, dilution occurs when a trademark is copied or mimicked, and gives off a negative, confusing or even slanderous impression of the trademark’s origins. This occurs if it is recognisable that the owner’s trademark (be it a logo, slogan or typography) is distinctive and famous.
The legal argument is that this generalises the name and makes the product or brand less distinctive. The way to avoid this is to capitalise any brand names and avoid using them as verbs. If you are unsure if a term you are using is a brand or not, take a look online. You know, Google it.
Trademark Tarnishment vs. Blurring
Dilution is defined in two different ways – dilution by ‘blurring’ and dilution by ‘tarnishment’.
Tarnishment hinders the trademark owner’s reputation. This comes about if a manufacturer feels the trademark has been used in a disparaging or offensive context. If you think about those witty shirts you see in marketplaces, it’s linked to products that are of poor quality or which they are portrayed in an unwholesome, distasteful context.
For example, Mercedes Benz objected to its cars being shown in a film in the Bombay slums, and so the logos were digitally removed to avoid any legal entanglements. If there is any risk of this the simple solution is to create a fictional company and product.
Blurring refers to the impairing of distinctiveness caused by the unauthorized use of a trademark on dissimilar products. Blurring occurs when you take away the owner’s uniqueness and selling points about its trademark, therefore hindering its sales power and consumer opinion.
As long as you are depicting a real brand, product or company accurately and truthfully then you shouldn't have an issue and there is no need to include the trademark symbol. If for some reason you do want to use a real company or product in a negative context or disparaging light, then it is always a good idea to seek legal advice before publication.
Permission and fair use can be a difficult obstacle to get your head around. For an in-depth and helpful article on guidelines, when you do not need to seek permission, fair use and more, we recommend you check out https://www.copyrightuser.org/faqs/
If you’ve had your fill of ‘the law’, then be sure to wash it down with a downloadable free copy of https://www.bookprintinguk.com/info/files/guide-to-book-printing