One of the challenges I work with when writing a story is how much of the real world I should put in it. Fantasy is easy, but for contemporary stories, do my guys eat at McDonald’s or The Invention Café? Do they complain about road repairs on Hennepin Avenue, or WhollyFake Boulevard? Can they make fun of Oreo crumbs in their friend’s teeth, or joke about him pulling a trailer behind their Harley to pick up the bits that fall off?

A huge advantage to using real places and brand names is that they effortlessly add context and texture to the story. If my character drinks a whole bottle of Mountain Dew I don’t have to explain his jitters. If he drives a Lamborghini we know what kind of car that is and what price range we’re looking at. Many readers will understand why he hates flying into O’Hare, what kind of food he gets at Burger King, or the contrast between San Francisco and New York. Without that, a barrage of made-up names can make a story feel more distant from our reality.

Of course, those names and places may have trademarks and owners who have an interest in how they’re portrayed. For trademarks of products especially, it pays not to be disparaging. If I’m going to give a character a horrible customer experience, I usually want to do it in Createaname Department Store, not Macy’s. Food poisoning happens in IGoogledItsNotReal Diner, not Olive Garden.

But there are the gray areas. In one of my werewolf books, I had the guys running past the boundary fence of the Lincoln Park Zoo in Chicago. That seemed harmless, and I had a question about the appearance of the fence in photos, so I emailed the public relations department of the zoo to ask, giving them my author credentials. They wrote back : “Lincoln Park Zoo is a trademarked entity and therefore cannot be mentioned in any works of art without the permission of Lincoln Park Zoo. Unfortunately, we are unable to grant that permission for this piece but thank you for reaching out to the zoo to clarify.”

That set me back a bit. “Cannot be mentioned in any works of art” is a pretty drastic statement, especially given that this is a very visible public institution, not even a private one. Does that mean my character can’t notice the Space Needle in the Seattle skyline without express permission? They can’t drive the Chunnel from England to France by name? Do my characters have to live in a void, empty of the casual trade name references of daily life?

I went looking for legal advice, and the sources I found tended to say that if you choose to use brand names, as long as it’s in a manner not designed to sell competing goods or services, neither permission nor marking (the Circle R and TM) should be required. The use of a trademark is considered infringing if it is used in a way that confuses buyers as to the maker of the product or provider of the service.

Disparagement/tarnishment is a dark-gray zone. You may get away with disparaging statements if your work is clearly a parody or if the statements are true. Otherwise, if your use could be considered damaging to the image of the brand, much better to drop the trademark and make up a new one. And avoid using a brand term for a generic product or in a changed form (like “googled” as a verb) if you can. Companies fight this as “trademark dilution” and although if your Southern character calls every soda a coke, odds are Coca Cola is not going to come after you for it, they potentially could. (If this photo showed the label, for example, I’d have to credit the source clearly, had better not show him choking on it, and I couldn’t use it as a cover.) A few large companies (Google, Apple and Microsoft get mentions) do monitor very vigilantly for misuse of their brands.

The other question is the degree to which such references date a story. If my characters meet in a Borders Bookstore, we know it happens half a decade or more ago now. If I use a clothing brand as a shortcut to show how fashion-conscious my character is (assuming I have any clue about a good brand for that,) it will only work as long as that brand is both well-known and trendy. While every story will become dated due to the changing minutia of modern life (can we say pagers?) using trademarks can add to the aging. Also our international readers may not make the connection shortcut that is obvious to a reader who lives where the trademark is well known. So even when it’s legal, it’s best done judiciously.

Here are a couple of articles by lawyers on the topic:

https://www.bookworks.com/2017/01/using-trademarks-writing/

https://www.janefriedman.com/trademark-is-not-a-verb-guidelines-from-a-trademark-lawyer/

(And one bonus about copyright and fair use: https://www.janefriedman.com/the-fair-use-doctrine/)

One last issue is that list that we sometimes see in the backs of books: “The author acknowledges the ownership of the following trademarks/wordmarks used in the text of this novel” where we give the corporate ownership name for trademarked brands from the text, in a list. Does it do anything? Offer any protection? I haven’t been able to find a good answer to that question. If anyone else has, let me know. I do note that major publishers do not seem to do this.

My take-home is to use known locations, names and trademarks in a wider context, where appropriate and desirable for flavor, but to try to invent the stuff that will carry drama or negative connotations. Some readers may be annoyed by the creation of random suburbs, small towns, businesses and landmarks in areas where there are none, but that’s better than a disparagement lawsuit. And to be creative (and not forget to search diligently online) for my alternative inventions, especially if they are going to smell bad, catch fire, or be used to commit murder.

-Kaje Harper

March 2018