QUESTION

If I use a proprietary name in a work of art/literature I create, do have to pay them?

Asked on Jun 18th, 2013 on Patents - Utah
More details to this question:
If I write a story or paint something where my character drives a Ford Fusion, drinks a bottle of Coke, or listens to Metallica, do I have to pay royalties or something to the holders of those names? Do I have to even acknowledge/contact them in any way?
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5 ANSWERS

You can use proprietary names in a written story but you may not be able to use pictures of products that may have copyright protection or patent protection.
Answered on Jun 19th, 2013 at 5:09 PM

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Acquisitions Attorney serving Lincoln, NE at Jayne L. Sebby
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As long as the product is "in the background," there shouldn't be a problem. You're just providing free advertising for the company. However, you need to be careful that you don't blacken the image of the product or company (ie: only bad people drive Fusions).
Answered on Jun 19th, 2013 at 12:20 AM

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Appellate Litigation Attorney serving Boston, MA at Banner & Witcoff, Ltd.
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If used properly - this would be a "fair use" of the trademarks - and you do not need permission.
Answered on Jun 18th, 2013 at 9:08 PM

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No. What you are proposing amounts to free advertising. Most mark holders would welcome the free advertising as long as it is not disparaging of the marks in question. From a trademark infringement perspective, the mark holders tend to take issue with your use of their marks if you creating a likelihood of confusion in the marketplace by trying to pass of your goods using their marks. So, as long as you are not trying to sell a that looks like a Ford Fusion, using Ford's trademarks, or a soda that looks like Coke using Coca Cola's trademarks, or music that sounds like Metallica using Metallic'a trademarks, you should be fine. An acknowledgement that the proprietary marks you have used belong to their respective trademark owners is always a good idea. Of course, you should consult an intellectual property attorney to fully explore your proposed use of the marks in question and then properly advise you in view of relevant case law.
Answered on Jun 18th, 2013 at 2:05 PM

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Licensing Attorney serving Portland, OR at Mark S. Hubert PC
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If in your book the hero drinks a coke there is no problem. However if he disparages Coke therein you may have problems.
Answered on Jun 18th, 2013 at 2:05 PM

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