Short answer: Yes.
Now and then, a writer or editor asks our online Q&A whether mentioning a brand name in a work of fiction requires permission or the addition of the trademark (™) or registered (®) symbol.
Fortunately, in works published in the United States there’s no need to sidetrack readers with unsightly sentences like “Her iPhone® slipped from her fingers and into the lake.” Anyone who reads fiction regularly already knows this. Mentioning a brand name in a work of fiction is generally considered fair use* unless it goes so far as to infringe on the rights of the owner. (More on that below.)
This freedom of mention in fiction is basically the same as for nonfiction, journalism, blog posts, and other published prose, but there are reasons to take care when using the names of real products in any work.
What the ™ ® ?
Trademark and registered symbols are used by their owners in advertisements, press releases, legal notices, and anywhere else they feel it’s important to identify or claim branding rights over a product name, phrase, logo, or image.
Anyone can slap a ™ symbol on a name or product to say “I’m claiming exclusive use of this,” and there’s no requirement to register a trademark to establish that claim. However, a product, name, or phrase that’s registered with the United States Patent and Trademark Office becomes entitled to display the official ® symbol, potentially gaining an advantage in any disputes over unauthorized use of the property.
If a writer other than the owner uses a trademark or registered symbol, a reader might reasonably infer that the writer has some kind of relationship with that brand—either that they own it or are working on behalf of the owner.
Styling of Trademarked and Registered Names
Even if your mentions of a specific trademark or brand name are one-offs in support of a character, setting, or plot, you still need to spell the name right and observe its capitalization and punctuation as far as is reasonable. If you don’t, your copyeditor will probably push for the proper version (Wi-Fi, Kleenex, Benadryl) in order to avoid trouble from the owners. (See CMOS 8.69 and 8.154 for advice on names of companies or brands with weird capitalization.)
If a brand (trademarked or not) is also the title of a published work, such as a newspaper or poem, it might require italics or quotation marks to conform to Chicago style. Treat such titles as you would in a citation: “She always carried the clipping from the Chicago Sun-Times.” “He was willing to perform ‘The Room Where It Happens’ from Hamilton for any occasion.” (Tip: Titles of works that you invent yourself get the same treatment. For specifics see the “Titles of Works” section beginning at CMOS 8.156.)
Do rights holders really invest time rooting out isolated transgressions in novels in order to prosecute? Consider your tolerance for risk and proceed accordingly. Evidently Dave Eggers and his editor didn’t worry when he wrote “After three tries, he realized his wifi wasn’t working” (The Circle [Vintage, 2014], 139). Indeed, it’s partly as a result of creative use and repeated microtransgressions that brand names eventually end up genericized in the dictionary along with words like “laundromat,” “dumpster,” and “google.” Novelists write the way people talk, and I don’t know about you, but when I say “dumpster,” I’m not thinking of it with a capital D.
Infringement
Things get sticky when a writer’s use of a trademarked product threatens to infringe on the owner’s right to profit from that name. If you aren’t sure whether you’ve crossed that line, get a lawyer to look at your work. Here are some ways use of a brand name might infringe:
- By creating the impression that you own the rights to that brand or by actually profiting from it. For instance, in 2015, the Star Trek fan-fiction film Anaxar found itself the target of a lawsuit when CBS and Paramount Pictures claimed the film infringed their rights to the Klingon language and other copyrighted elements of Star Trek.† If you’re thinking about displaying someone else’s registered logo on a book cover or having a main character named Rubeus Hagrid who lives at a school called Hogwarts or titling your novel The Chicago Manual of Style, you might want to consult a lawyer. (Indeed, in spite of the general wisdom that says a book title can’t be copyrighted, there are exceptions; see CMOS 4.16.)
- By making a brand look bad and thereby harming the owner’s ability to profit from it. An example might include using the brand name of a popular over-the-counter drug in a story about a lab worker who exposes it as toxic. It’s easy enough to avoid this danger. After all, why would any writer both risk a lawsuit and miss out on an opportunity to invent a new brand?
- By “diluting” the brand name, or reducing its power as an identifier of that product and only that product—for instance, by using a specific brand name as a generic. The traditional guideline for avoiding trouble in this way is to never use a trademarked name or phrase as a generic noun: not “I popped a benadryl,” but “I popped a Benadryl tablet.” (And that is why novels aren’t written by pharmaceutical companies.)
Workaround
Much of the time, a specific protected name isn’t really important to what you’re writing. For instance, you might write “She stood at the xerox machine, connected to wifi, grabbed a kleenex, and popped a benadryl” and then balk when the editor insists on uppercasings and hyphens. You could simply insist on your original spellings, but sometimes using general descriptors is a better tactic: “She stood at the copier, logged on to the network, grabbed a tissue, and popped an antihistamine.” (And you might write a better sentence, while you’re at it.)
Look It Up
To check whether a name or phrase is a registered trademark, look it up at the United States Patent and Trademark Office website database. Similar services are available in many other countries—for example, the databases offered by the Intellectual Property Offices in Canada and the United Kingdom, respectively.
Disclaimers
Certain kinds of fiction and nonfiction (most notably parody) are judged by looser rules of fair use. Legal advice is strongly recommended for anyone venturing there.
Although I once studied Latin, I never studied law, so please take this post as general information for educational purposes only. For legal advice on writing or editing, it’s important to consult an intellectual property rights attorney.
* CMOS 4.84–94 discusses fair use. See also Shop Talk’s interview “Patricia Aufderheide Talks about Copyright and Fair Use.”
† Eriq Gardner, “ ‘Star Trek’ Lawsuit: The Debate over Klingon Language Heats Up,” Hollywood Reporter, April 28, 2016.
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This post originally appeared at the Chicago Manual of Style Online Shop Talk blog on November 19, 2019, © University of Chicago.
