Trademarks, Brand Names, Song Titles, and Specific Place Names

[PatHayashi]

Hello All,

I'm new to writing fiction and really love reading the stories here. I'm started an account to try my hand at writing some stories of my own. One of the things I'm struggling with is the use of real trademarks & brand names (e.g., Uber, Starbucks, etc.), real song titles, and real place names (e.g., named landmarks like the Walmart down the street, or such and such theatre). Is there some sort of fair use rule when using these in fiction? E.g.:

She was waiting for her rideshare with a latte when it pulled up blaring a popular teen-pop song on the radio.

or

She was waiting for an Uber sipping on her Starbucks when it pulled up blaring WHAM's "Wake Me Up Before You Go Go"

Thanks for all your insight!

Pat

 

[mynameisben]

Hello All,

I'm new to writing fiction and really love reading the stories here. I'm started an account to try my hand at writing some stories of my own. One of the things I'm struggling with is the use of real trademarks & brand names (e.g., Uber, Starbucks, etc.), real song titles, and real place names (e.g., named landmarks like the Walmart down the street, or such and such theatre). Is there some sort of fair use rule when using these in fiction? E.g.:

She was waiting for her rideshare with a latte when it pulled up blaring a popular teen-pop song on the radio.

or

She was waiting for an Uber sipping on her Starbucks when it pulled up blaring WHAM's "Wake Me Up Before You Go Go"

Thanks for all your insight!

Pat

Your second sentence is just fine. Although, there is a hyphen between the "Go Go" in Wham!'s song.


Ben

 

[SimonDoom]

There is no meaningful limitation on referring to a thing by its brand name in a work of fiction. You do not need permission. Nor is there any limitation on referring to movie titles, book titles, or song titles.


Regarding brand names, the main issues are these:

Confusion -- does your use of the brand name suggest a connection between your work and the brand owner that will confuse people? It might be an issue if you use the brand in your story title, e.g., "Walmart Sex Slaves", but otherwise it's unlikely there's a problem.

Dilution -- does your use of the brand name dilute the strength of the brand? This too is unlikely.

Disparagement -- does your use of the brand disparage or harm the owner? "Walmart Sex Slaves" might draw the objection that readers might think there really ARE sex slaves at Walmart. But since these are all fantasy sex stories, this too is not likely a problem.

With respect to songs, you can't quote all the song lyrics. That's copyright infringement. But you can quote a line or two. That's fair use. And there's no copyright ownership in the title, so that's fair game, too.

 

[KeithD]

There are no laws or restrictions on place names. Trademarked names, by trademark law, should be spelled as trademarked. The hedges on this is if you are parodying the brand or if you aren't specifically referring to that brand.

 

[SimonDoom]

Trademarked names, by trademark law, should be spelled as trademarked.

There's no requirement in trademark law that governs how non-owners spell the mark, or use the trademark symbol. A fiction writer is free to spell it Walmart or Wallmartt or however the writer wants to. A fiction writer is under no obligation to use the trademark symbol. That would look weird in a story, I would think.

 

[KeithD]

There's no requirement in trademark law that governs how non-owners spell the mark, or use the trademark symbol. A fiction writer is free to spell it Walmart or Wallmartt or however the writer wants to. A fiction writer is under no obligation to use the trademark symbol. That would look weird in a story, I would think.

I posted nothing about using the trademark symbol and I noted when variation from the trademarked spelling is fine.

 

[SimonDoom]

I posted nothing about using the trademark symbol and I noted when variation from the trademarked spelling is fine.

OK. I wasn't clear what you meant before.

 

[PatHayashi]

Thank you all (mynameisben, SimonDoom, KeithD) for your responses! They were a great help. Very much appreciated,

Pat

 

[jaF0]

I see no point in giving such entities free advertising. I keep things as generic as possible. Let the reader fill in whatever blanks their imagination can.

 

[KeithD]

I see no point in giving such entities free advertising. I keep things as generic as possible. Let the reader fill in whatever blanks their imagination can.

Brand names can be a quick, one-word character identifier.

 

[SimonDoom]

I see no point in giving such entities free advertising. I keep things as generic as possible. Let the reader fill in whatever blanks their imagination can.

Sometimes using brand names as opposed to generic labels will make the story seem more realistic. It fills in detail. It brings the narrative closer to home. It more closely approximates the way people actually talk and think.

People put on Band Aids. They drink Coke. They go to McDonalds. They go to Walmart. They wear Jimmy Choo shoes. Substituting generic terms for brand names may not quite capture reality in the way the author wants to present it and convey it to the reader. It's an interesting issue with pros and cons on both sides and there's no right answer.

 

[PennameWombat]

Sometimes using brand names as opposed to generic labels will make the story seem more realistic. It fills in detail. It brings the narrative closer to home. It more closely approximates the way people actually talk and think.

A Ford Mustang makes repeated appearances through many of my stories. A 1971 Boss Mustang with a Cleveland 351 cubic inch V8 with a four-barrel carburetor. An "R" code 351C rated at 330 hp and with 14 second stock quarter-mile time.

It's meant to evoke more than just "he (later she) owned a car" as the stories wend their way along and ownership changes.

People put on Band Aids. They drink Coke. They go to McDonalds. They go to Walmart. They wear Jimmy Choo shoes. Substituting generic terms for brand names may not quite capture reality in the way the author wants to present it and convey it to the reader. It's an interesting issue with pros and cons on both sides and there's no right answer.

I hoped to convey some humor when two former housemates groused at each other. They didn't realize it was information that aided Mel and Chris in finding out why a third former member of that house had disappeared into thin air.

"We knew he'd taken the last two Cokes [the day he'd disappeared]," Anita grumbled, "because Herb had bought a bunch of RC Cola."
"It was on sale," Herb said and shrugged.

I could've invented a cola brand instead of using Coke, but, almost everyone worldwide will have a picture in their mind of a "Coke can." I could focus on other aspects of the scenes that were important, not describing the decors of cans. Not everyone knows RC Cola but it's less important, just that it clearly ISN'T Coke and people will (most likely) assume its cans won't look anywhere near the same.

Mel's Universe isn't exactly our universe but it's just a twist away. I use plenty of generics and invent my own stuff but like you said, these are useful in places.

 

[oggbashan]

I have had a story rejected because I referred to a brand-name product throughout.

I revised it to a generic title for the item but it was still obvious what most people would know as the brand name. Only one manufacturer makes and markets it.

It was deleted (presumably after it was reported). I have not attempted to replace it.

It is one of Lit's unwritten rules - a passing mention might be OK such as 'Lycra' but not if the whole story is about a product...

 

[MColton84]

I try to use real locations, Target, The Apple Blossom Mall, etc, in my stories. Using real locations, for me, adds a sense of reality to the story. It's also easier for me to describe the setting when I have been there. I have tried using fictional locations but it was more work keeping track of my details. Others may not have this problem, but I do.

When it comes to Brand name items or model specific vehicles, I use them on a character by character basis. In my mind, people have their preferences, and those preferences can give the reader some insight into your characters. Most people don't enter a gas station and get any old beer or any old cigarettes, they have a brand of choice. If your character drives a vintage muscle car, it isn’t because that's what was available. They either inherited it, restored it, or sought it out to buy it, and that says something about the person. A brand name can be a small disposable detail, or it can be a part of the character's personality.

Jason drives a jacked up 4x4 Bronco, smokes Newport Red's, and only drinks Bud Light. For me, those details paint a very clear picture of the character. I use brand names all the time. For me it is just another tool that can help tell your story. Just my opinion though.

 

[jaF0]

People put on Band Aids. They drink Coke. They go to McDonalds. They go to Walmart. They wear Jimmy Choo shoes.

I don't use any of those brands. Not one.

 

[sirhugs]

And take special care to avoid Disney trademarked or copyrighted properties. Disney is notoriously litigious, so referring to their property will trigger alarms.

Mickey has no sense of humour.

 

[Kumquatqueen]

Thing with brand names is they aren't universal (no idea what a Newport Red smoker is like) and the associations can change.over.time - eg Burberry went from a very upmarket raincoat brand worn only by upper classes in the UK and the Japanese, to a style worn by cool counter-cultural types , to a brand.that was mostly faked and worn by totally unaspirational semi-criminal types and Burberry stopped making their trademark pattern. The cool brand of trainers/sneakers will change even more quickly.

I was surprised Lit doesn't seem to have a rule against using real addresses. It's a plot point in the start of my series that someone posts an online ad for a friend, "excellent blow job if you can get here ASAP. SE1 3TU."

UK postcodes identify perhaps 20 households on average, so every apartment block has its own. So when the guy replies 'Flat 5', that's a precise address he's given away. (That's all you need to get a letter delivered)

I did check and that postcode actually belongs to a knocked-down office building, but I did worry about assumptions of revenge porn, using someone's details in a Lit story. I suppose the effort someone would have to go to to write a story with someone's details makes it pretty unlikely.

 

[SimonDoom]

And take special care to avoid Disney trademarked or copyrighted properties. Disney is notoriously litigious, so referring to their property will trigger alarms.

Mickey has no sense of humour.

This depends on what sort of use you are talking about.

If you write a sex story about Ariel the Little Mermaid, and Disney found out about it, they might argue you have infringed their copyright.

But there's no legal problem whatsoever with mentioning, in your story, that a character went to see The Little Mermaid, or visited Disneyland, or has ears like Mickey Mouse, or walks like Donald Duck, or that a character looks like Ariel, or sings like Belle from Beauty and the Beast. None of those uses involve any violation of anything, so you're free to make those kinds of references to your heart's content and Disney has no legal right to do anything about it.

 

[KeithD]

I have had a story rejected because I referred to a brand-name product throughout.

I revised it to a generic title for the item but it was still obvious what most people would know as the brand name. Only one manufacturer makes and markets it.

It was deleted (presumably after it was reported). I have not attempted to replace it.

It is one of Lit's unwritten rules - a passing mention might be OK such as 'Lycra' but not if the whole story is about a product...

I'd have a tussle with Laurel over that, I think, if it cropped up on my stories (which it hasn't). There's no supportable reason not to include Brand names unless you are maligning the product to the point of harming its profitability and can't be defended on parody grounds.

I'll note again that use of a brand name (e.g., the character wore Prada shoes or the character wore Birkenstocks or the character wore mismatched sneakers, one with the toe being held on by duct tape) can help define a character to the reader in one image--not that Literotica is a place to put value into being succinct and clear at the same time.

 

[KeithD]

I was surprised Lit doesn't seem to have a rule against using real addresses. It's a plot point in the start of my series that someone posts an online ad for a friend, "excellent blow job if you can get here ASAP. SE1 3TU."

It does ban use of any URL, real or fake. I got caught on a fake one once (which I'd researched to make sure it wasn't in use).

 

[SimonDoom]

It does ban use of any URL, real or fake. I got caught on a fake one once (which I'd researched to make sure it wasn't in use).

That rule makes no sense to me. I have a story that included a .com domain, completely fictional. I guess the URL was buried deeply enough in the story that I got away with it. There is no real website with exactly the same domain. It makes no more sense to ban URLs than it does to ban the use of the name "Dave" because some real people have the name Dave, or to ban the use of the name "Paris" because there's a real city with that name. There's no possible legal problem unless, as you point out, you are disparaging the owner of the Site or causing confusion in some way.

 

[KeithD]

That rule makes no sense to me. I have a story that included a .com domain, completely fictional. I guess the URL was buried deeply enough in the story that I got away with it. There is no real website with exactly the same domain. It makes no more sense to ban URLs than it does to ban the use of the name "Dave" because some real people have the name Dave, or to ban the use of the name "Paris" because there's a real city with that name. There's no possible legal problem unless, as you point out, you are disparaging the owner of the Site or causing confusion in some way.

Yep, but that's the only story rejection of mine that stuck and required me to rewrite, which was tough because the URL was key element of the story's hook. Every other rejection has ended up with the story being posted as originally written.

 

[PennameWombat]

Thing with brand names is they aren't universal (no idea what a Newport Red smoker is like) and the associations can change.over.time - eg Burberry went from a very upmarket raincoat brand worn only by upper classes in the UK and the Japanese, to a style worn by cool counter-cultural types , to a brand.that was mostly faked and worn by totally unaspirational semi-criminal types and Burberry stopped making their trademark pattern. The cool brand of trainers/sneakers will change even more quickly.

As an expatriate living in a country not of my birth, this issue has additional concerns for me beyond these cited. So I rarely use clothing and shoe brands. But there are also items I use that context will provide enough info or they can, if they're really curious, look it up.

I was surprised Lit doesn't seem to have a rule against using real addresses. It's a plot point in the start of my series that someone posts an online ad for a friend, "excellent blow job if you can get here ASAP. SE1 3TU."

I used BA14 8AT in a story. But it was carefully chosen. If you look it up it's where Salter's Mill used to be in Trowbridge, now it's a shopping mall called 'The Shires.' At the time the story was set it was still the abandoned wool mill and hadn't yet been redeveloped so made a useful hiding place for my Stonehenge terrorists but the post code written in the margin of a map allowed my protagonists to find them.

And take special care to avoid Disney trademarked or copyrighted properties. Disney is notoriously litigious, so referring to their property will trigger alarms.

Mickey has no sense of humour.

Mel and Chris were very excited with their planned visit to 'Castleland' in Anaheim, California after they'd spent a day at (and had sex in a conference room at) 'Mount Mallomar,' an observatory in the same general area The Castleland trip fell through when a nearby star went supernova.

It does ban use of any URL, real or fake. I got caught on a fake one once (which I'd researched to make sure it wasn't in use).

It was important that a one night stand left behind her email address for my male MC to find. But to avoid spelling it out he thought to himself "Her email ID was obvious [based on the first name she'd given him], the domain too. But the hostname [was one he'd never seen before]." I simply assumed most people would know the structure of an email address and he read out the hostname, 'Skyhole.' But the rest was left to the reader's imagination. I've done similar with web-type references, but it's never been important for me to have it spelled out, like your case sounds.

 

[litfan10]

If I am writing in a real place setting then I will use landmarks to make it authentic. I will even try to do my homework so I have some lesser known places to give it a deeper sense of it's real.

Otherwise I try to make it all my own. Who needs Starbucks when your town has a killer local coffee house? My characters generally drink soda. Not only is this due to a sense of why promote something for free, but also because I don't want to alienate those who absolutely prefer Coke over Pepsi or vice versa.

Same is true about real people, I will try to make up characters who are popular or celebrities in my characters' world.

Now as a music and book nut, I will slip in real references as a tip of the hat to what I like, and I am definitely trying to subtly promote them. My characters have strip danced to Def Leppard, ZZ Top and the Struts. I do mention song titles but never lyrics to avoid any copyright issues.

Especially my Erotic fiction but also my general for pay fiction my focus is on my reader's and my enjoyment - not free advertising.

 

[SimonDoom]

This is one of those things about which there is no substitute for good judgment.

Yes, it's true that an excessive and fetishistic use of brand names can date one's story. It may make much less sense to a reader 10 years from now. For instance, if 15 years ago you wrote a story that featured two people connecting over MySpace, there would be readers today who would say, "Huh? What's MySpace?"

But, for example, everybody knows what Disneyland is, and Disneyland isn't going anywhere anytime soon. You can write an erotic story about a sexual encounter that happens at Disneyland, and naming it and describing it will give the story a sense of place, and possibly even a little erotic zing. If you choose on the other hand to invent an entirely new theme park, number 1, it will take more effort, and number 2, it might have less erotic impact. It's a judgment call. It might be sexier to have 2 people get it on during the Pirates of the Caribbean ride than during some fictional ride you create. If you do so, Disney has no claim against you, even though some of its officials might find your story distasteful.