Trademark and Copyright Issues

Guest post
by Curtis Edmonds

The main character in my book, RAIN ON YOUR WEDDING DAY, used to work at Coca-Cola headquarters in Atlanta. He has a smallish collection of Coca-Cola memorabilia. And, not to put too fine a point on it, he drinks a whale of a lot of Coca-Cola. The bubbly drink is mentioned by name multiple times in the manuscript.

Am I about to get sued?

I don’t think so, but it’s not impossible. It almost happened to author Patrick Wensink, who wrote a book called “Broken Piano for President.” The cover of that book was designed as a homage to the Jack Daniels whiskey label – enough so that lawyers at Brown-Forsman, the parent company of Jack Daniels, wrote him an extremely polite letter asking him to change the cover art. That particular situation worked out well for both parties—Jack Daniels got goodwill points for handling the situation in a gentlemanly way, and Wensink got a small-but-welcome bump in sales. But it could have turned out in a much more negative way.

Most authors are knowledgeable about copyright and plagiarism issues. There is a lot of information out there about copyright infringement, and how you can get in trouble by using even a snippet of a copyrighted song in your novel. But the names of products like Coca-Cola aren’t copyrighted. They’re trademarked, which is a different set of form of intellectual property.

In most situations, it is all right for an author to refer to specific trademarks in a book. My main character orders meat from Omaha Steaks, stays at a Holiday Inn, and enjoys a shot of Maker’s Mark bourbon in his Coca-Cola. It’s not a problem when characters in a novel use the trademarked goods that all of us use every day. (You don’t want to overuse trademarks to the point where they appear on every page, but that’s a style issue and not a legal issue.)

But there are three errors that authors can fall into when dealing with trademark issues. The first is “trademark infringement,” where someone just out-and-out steals a trademark, or does something that leads to a likelihood of confusion between a book and a trademarked product. For example, if you write a novel about wizards, no one is going to object to that. But if the wizards in your story try to play the game of “Quidditch,” which is trademarked, then that will likely lead to a cease-and-desist order.

The second error is “trademark dilution,” where an author utilizes a trademark to the point where it impacts the rights of the trademark holder. That was the allegation made in the “Broken Piano for President” incident, where the cover design was so similar to the Jack Daniels label that it could have led to confusion. Now, it’s unlikely that anyone would actually confuse a book with a whiskey bottle, but Jack Daniels felt the author was intentionally trading on the whiskey maker’s goodwill.

The third error is what is called “trademark tarnishment,” where an author puts a trademark in an unduly negative light. If a character uses a Xerox machine, that’s not going to get you in any trouble. If a character builds an evil self-replicating robot named Xerox destroys human society, you might get a cease-and-desist letter about that.

For my book, I was very careful in how I used the Coca-Cola trademark. I didn’t use any Coke-related iconography in the book – the script logo, the contour bottle, or even those cute little polar bears. The cover design doesn’t have anything to do with Coca-Cola. I don’t say anything negative about Coca-Cola. And so far, I haven’t heard anything from Coca-Cola about the book. I hope that I don’t, and I don’t think I will, because I know what the rules are, and I didn’t misuse the trademark.

If you use your common sense, and don’t say anything unreasonably negative about anyone’s trademarked anything, you should be able to steer clear of most problems. Having said that, if it’s questionable that your use of a trademark could cause a problem, it’s a good idea to err on the side of caution and avoid using the trademark if you can.

For more information, check out this overview of trademark law from Harvard Law School.

Curtis Edmonds is an attorney living in rural New Jersey. His short fiction has appeared in McSweney’s Internet Tendency, The Big Jewel, and Untoward Magazine. Learn more about Curtis from his website and his Amazon author page.

His debut novel, RAIN ON YOUR WEDDING DAY, made #1 on the Amazon free Kindle Store list for literary fiction. See the sneak peek here or check it out on Amazon.

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10 thoughts on “Trademark and Copyright Issues”

  1. Excellent post—thank you. I’ve attended several meetings with expert panels about copyright and trademarks and it’s amazing how little people know about the subject.

  2. Good article. My husband used to do trademark work (as an attorney), so I get the trademark lecture too often. Additionally, he hates when I use a trademakr generically. I have to make photocopy (instead of Xerox something), ask for a tissue (instead of a Kleenex) and drink from a polystyrene cup (instead of Styrofoam ones). 🙁

    I think the key with trademarks is, like you said, don’t tarnish their good trademark, and don’t try to use their trademark to propel your book to fame (like title your novel the Coca Cola Principle, where people would think it’s a book about/endorsed by the company).

  3. Good info, Curtis, thanks! Although sometimes I think I should be so lucky as to draw the attention of one of these companies, y’know? 😀

  4. Much depends on the company. The Southland corporation is known to be legal pitbulls and as I result you NEVER hear of or see filmed any crimes at a 7-11 store.
    Not everybody is that aggressive about it.

    One thing to note about mentions in the text–companies (and slave magazines like Writers Digest) overstate the protection. Actually, I have a really hard time seeing Xerox win the robot case. You see many examples of product name use in films. The killer/callgirls Bambi and Thumper, Samuel Jackson calling the twerp “Flock of Seagulls” before blowing him away, Bam Bam in “Reindeer Games”.
    None of this stuff is cut and dried, and the worst fear of a corporation would be to LOSE a suit like that.
    The Jack Daniels thing, involving a visual trademark, is another issue and easier to enforce.

  5. Great info, Curtis, thanks for sharing. And, I just bought your book, it sounds like a good read. And yeah, I’ll write a review once I’ve read it too.

  6. There was a interesting discussion about “Superman” last year. Someone had written a book and wished to use the phrase “Superman” in the title. It was not about the superhero but the other usage of the term. He was requesting advice about whether it was a good idea. The general consensus was no but if you have to use that phrase hyphenate it.

  7. How about using my favorite restaurant’s trash enclosure as a body dump? Trouble? No trouble? No trouble, say I–my lead character eats there all the time and will continue to do so. So why would anyone else be discouraged from dining there? Shucks, I’ve dumped dead bodies alllllll over Virginia Beach. Thank goodness they’ve never complained and neither have my readers. LOL

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