Trademarks are an interesting piece in the writing world. Mostly because they are often overshadowed by copyright. Writers will frequently ask questions about copyright and have to learn about the different aspects of copyright and public domain. They don’t necessarily talk about trademark. So let’s discuss whether or not we can use trademarks in our writing.
Before we get into that, let’s first look at what a trademark actually is.
So, there is a distinction between trademark and copyright despite both concerning people’s intellectual property. Generally speaking, a trademark is to do with business and copyright is to do with creative work. It can also get a bit complicated when something is both copyrighted and trademarked. Harry Potter, as an example, is covered under both copyright and trademark. If something has the little TM after it, that means that the creator is asserting their trademark rights but they have not officially registered them. The R symbol is used to indicate if the trademark has been formally registered.
But can you use a trademarked thing in your writing? Yes. Many people do and are okay to do without seeking permission. That’s because trademark is generally used as a way to say this product is my product and that product is something else. Which means that if your characters are having a can of coke, you’re not saying that your book is made my Coca Cola, so trademark laws don’t apply. Before I go any further, I feel I should point out that I’m not a lawyer and, if you’re in any doubts about what you can or can’t use, hire a lawyer. If you can’t afford one and you have doubts, don’t use it. With the disclaimer out of the way, let’s break down when you can and when you can’t use trademarks.
There are three main points you need to consider. Infringement, defamation and dilution of brand. Infringement we’ve already started to cover. You can say that your characters are wearing Nike because you aren’t trying to sell Nike clothes. That’s what infringement is. Infringement would be if I opened up a burger shop and started selling Big Macs. For writers, that means that if you call your book Harry Potter and the Doctor’s Stone, you’re infringing a trademark.
The next one is defamation. Defamation is a relatively complicated part of law and is definitely something that I can’t cover fully. For us, though, it means you can’t say something bad about a trademark in writing. I’m not going to be able to get away with my characters saying Coke is horrible, I prefer Pepsi. Where this becomes complicated is because there is a pretty good argument that that wouldn’t be defamation. For starters, defamation needs to be a false statement and that would be a fictional character’s opinion, which means you could argue that it isn’t false. Having said that, Coca Cola’s legal team will be fairly large and well-funded. It’s not worth the hassle at the end of the day.
The third is dilution. This is when you dilute the brand of the trademark. So, if Pepsi released a beverage called Coke, that dilutes Coca Cola’s brand. Writing will rarely cover this. Unless of course you’re calling your book Harry Potter and the Doctor’s Stone. Don’t do that. You’d be surprised how many people use things like Harry Potter in their book and then try and release it on Amazon.
There are some edge cases that don’t fit nicely into one of these boxes but you still need to be aware of. If you use a real brand, company or thing that is protected by law you have to be careful what you have them do in your writing. If I wrote a book that featured a search engine that rose to be one of the biggest and most prevalent companies in the world that has impacted every aspect of modern life until it buys world governments and starts using people to power its data banks, I can completely do that. You and I both know that I just described Google. If I call the company Google in my story they’re going to have something to say about that. If I call it JXB then they don’t have anything to say about it. It doesn’t even have to be negative, either. If I portray a real company doing something that it doesn’t do then they may take issue with it. So, if you have a brand or company or trademark that is essentially a character in your novel, change the name and its details.
Using trademarked things in your writing is relatively simple at its core but it has the potential to be a massive headache if you don’t know what you’re doing. As I’ve already said, if you have any doubts then get a lawyer. Or just don’t do it. That’s cheaper.
© 2020 David Chitty
Available under the Thanet Writers Education Policy
David Chitty was born and raised in Thanet in the 90s. He devotes most of his energies to writing fantasy fiction novels.