As I mentioned in my April post, writers can use brand names in their fiction without worrying about copyright infringement. If your character wants to drink 7-Up, let her. You don’t have to call it lemon-lime soda if you don’t want to.
When someone uses a trademark to identify the actual product, that is called a nominative use. The trademark law doesn’t impose any requirements on writers and others who use trademarks this way. Still, a respectful author will honor the trademark owner’s rights as much as possible.
Several years ago, I saw a Formica® advertisement asking writers to “circle their Rs.” (The ® indicates that what precedes it is a registered trademark.) A registered trademark can lose its protection if consumers use it generically to refer to other brands of competitive products. After people started calling all facial tissues “kleenex” and all photocopies “xeroxes,” the owners of those trademarks spent a lot of money educating consumers on the proper use of the terms. Formica is trying to prevent the same thing from happening to it.
Unfortunately, Formica’s solution has its own problems. Although word-processing programs include the ® among the available symbols, its absence from the keyboard means that inserting it slows down the writing process. More importantly, the ® interrupts the story for the reader, so most publishers don’t use it. The ® is not legally required, and there are other ways to help trademark owners protect their property. One is to use generic terms. Or if you think “the real thing” will add authenticity, just capitalize Coke.
When trademarks are mentioned in fiction, it is normally a nominative use. A careful writer will also make it a respectful one.
Kathryn Page Camp is a licensed attorney and full-time writer. Her most recent book, Writers in Wonderland: Keeping Your Words Legal (KP/PK Publishing 2013), is a Kirkus’ Indie Books of the Month Selection. Kathryn is also the author of In God We Trust: How the Supreme Court’s First Amendment Decisions Affect Organized Religion (FaithWalk Publishing 2006) and numerous articles. You can learn more about Kathryn at www.kathrynpagecamp.com.