Tag Archives: law

Writing and the Use of Trademark Words

The use of trademarks is a very litigious business for those who commit infractions. You better not title your strawberry drink Coca-Cola, or call your car design the Toyota Prius or Toyota Pumpernickel. Most of this seems obvious. The maker and manufacturer own the right to that brand and no one will ride on their fame and steal their sales. It can get as contentious as the famed Disney lawyers who have actually trotted into a little flea market and told a woman to cease and desist in selling clothes made with Disney trademarked designs. The fabric was bought legally; it was the fact that she was trying to sew the cloth into clothing and sell that, that Disney objected to. Lawyers for Marvel contacted Vancouver media at one point and told them to stop calling a particular cat burglar (who climbed the side of buildings ) Spider-Man. They didn’t want the comic book hero associated with the dark side.

These areas can become very contentious, and there are copy cats who will take a name and change one letter while keeping the font and style the same. Companies also trademark their brand colors but when it comes to the world of writing there are many different areas.  If I’m putting a brand name into my magazine or website, say as an ad that they paid for, then I have to use it properly, with either a registered® symbol or a trademark ™. These are different forms of branding. But what happens when we’re talking about fiction?

This came up in the writers’ group I belong to and it caused some upset as one author felt picked upon, although we were discussing the vagaries of the situation. Someone said her manuscripts had been rejected from a publisher because she mentioned name brands in her story, such as the character putting on his Armani suit and driving his Rolls Royce. In fact, a writer can using any brand name in their fiction and they do not have to put trademark or register marks into the text. As an editor I’ve sometimes had to pull these symbols out. The discussion continued that it would be okay to have a character drink, say, an Absolut vodka but to drink piss-warm Absolut would possibly be seen as defamatory.

The truth is, it would be an extremely rare case of any publisher ever being sued (or the writer) because a brand name was used in a negative light. It happens all the time. But this is very different for fiction than for advertising and marketing materials. Even nonfiction, as in a review, a critical piece or a journalistic article on a company or a product does not curtail the writer from writing negatively about that product and naming it. There have been science fiction novels that had various corporations taking over or running the future and these did not depict the shiny side of the corporation.

A publisher who asks a writer to remove every name brand from a piece of fiction could be doing it for several reasons, but should explain why they want it removed:

  • they think the usage actually detracts from the writing
  • they fear libel for the defamatory use of the name
  • they have a personal feud with a company
  • other?

The first reason is the only valid one, while the third is more a case of personal issues that should not interfere. And the second reason is really ridiculous. I commented and still maintain that a publisher who fears being sued is not knowledgeable in the ways of publishing, fiction and trademark issues. You don’t have to be an expert to know this and there are numerous examples out there. Not all publishers are educated on copyright and publishing, as was seen with the Food Source editor who thought everything on the internet was up for grabs and public domain. Not so.

If you opened a book store and called it Kodak, or a shoe store and named it Xerox, you would run into branding issues. But if you opened a bookstore called Blackberry Books, you wouldn’t and in fact there used to be a bookstore by that name. If you write about a drug smuggler who drives a Humvee and loves her Converse runners because they help her escape faster you’re not going to have a problem. If you write a book saying that Lulu Lemon yoga pants cause cancer, you better be able to prove it or you’ll be slammed with a defamation suit.

Product placement in a movie or TV show is a big thing worth big bucks. You, the writer, naming any brand in your story is not what your story is about, yet it could be a major part of the plot and it would still make no difference to those corporations. So write away and don’t worry. This blog has not been brought to you by Pepsi, Disney nor Exxon.

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Best Careers For Criminals

Our world has gone topsy turvy, and perhaps it’s always been this way. There certainly have always been people who used corruption, selfishness, exploitation and amoral behavior to further themselves at the expense of others. These people were usually kept in check, or at least the wholesale rampant anarchy was, so that there is a semblance of society, rules and laws by which the majority abides. And it tends to make living a happier and better experience.

Sometimes we get too many laws, and bylaws and requirements and procedures that muddy our lives in bureaucratic paperwork and hoop. But even so,  we usually know who the good guys are. Then again, if you look at the news we’ve been getting of late it might be hard to tell as the lines blur. I’ve already talked about how the good police and RCMP have had their name tarnished by the criminal, unthinking or untrained actions of other members of these forces. Perhaps, because I live in BC I hear more about this province but the police and RCMP here seem to be particularly bad, tasering people to death, shooting them in the back of the head kicking a guy who is complying (the latest from Victoria), or beating and robbing innocent people. We have hit an age of media that lets these events be recorded more frequently, therefore bringing what may once have been hidden to the attention of the common citizen.

So that’s one career for a criminal. If you like pushing people around, abusing power and generally getting away with murder, become a cop and you can avoid the usual criminal prosecution and just get suspension with pay, a desk job, or a worse, dismissed from your job. But you won’t end up in jail. I wonder if these police forces actually understand how much they’re hurting their own image by past denials and cover-ups. Doesn’t say much against corruption, does it?

Then of course there is the Catholic church. If you’re a pedophile, or some other form of sexual abuser, it’s the best place to be. Doesn’t really matter if you believe. After all, the church has gone through a few evolutions, fabrications and resurrections in its 2000 year history. Some of those evolutions involved banning sex in all sorts of forms by the 12th century and making it wrong for a priest to be married to a woman. Of course, we can try to negate the fact that as animals and humans there is a natural drive to procreate, or what the Church really hates, fornicate.

So in the really sensible repression of sexuality, the Church has helped create its own demons. Who needs hell when the Church houses it within its own walls? First Nations children taken from their homes and raised in residential schools often run by a priest and abused different ways. Choir boys and girls sexually abused. Other children and young teens molested in schools or other places. And one sexual pervert after another, still held in the comforting arms of the Catholic church, protected, hidden and defended. Priests moved from one place to another with not word from the Church to warn parents. No, far better to hide it and then pretend it never happened.

The latest in a string of priestly molesters so long it would probably encircle the globe (if we even knew all the names which you can bet we don’t) is Father Murphy alleged to have sexually abused some 200 boys and the church under Cardinal Ratzinger, the now Pope Benedict, just covered it up. When the religious leader of a very powerful and rich institution helps cover this up you know that the disease that eats at the heart of the Catholic church is deep and possibly irreparable. But then they are only human; conniving, lying, deviant, criminally human.

If I was the antiChrist or Satan, you know where I’d go? Not some dark den of Goths, not even into a lawyers’ enclave. No I would go straight to the church. Who would notice amongst that pack of miscreants. And in fact if I needed an army of darkness, well I could certainly pick the best from the Church’s own clergy.

Sad, isn’t it, that these two institutions (law and faith) don’t try to rid themselves, incarcerate or otherwise punish those who have blatantly disregarded the laws. Instead they hide and protect. So this year’s top two jobs for criminals is to become a police officer or a priest. Best place to learn the ropes, to avoid the rope and to have the time of your life at the expense of others. So much for civilization.

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