If you’re writing a blog post or article about a brand, or if you want to use the name of a brand in your work, it’s important to check whether you need permission. You may be surprised that there are many situations where even quoting someone else’s words or using their logo could require permission from the brand involved. In this guide we’ll look at when you might need permission and how acquire USPTO trademark registration and what happens if you don’t!
Here’s a guide to using trademarks in your writing.
When you’re writing a book, you may find yourself wondering whether you need permission to use another brand’s name.
Trademarks are a form of intellectual property, and trademark law is designed to protect consumers from confusion in the marketplace. The Lanham Act, which governs trademark law in the U.S., says that a company can prohibit others from using its trademarks if they aren’t authorized by the company. If a consumer sees two products with similar packaging or logos and isn’t certain which one is the genuine product and which one is not, he or she might purchase both (or neither). This could lead to lost sales for companies who invest heavily in advertising campaigns—and it could even lead to lawsuits against these companies if someone gets sick after eating expired food because they couldn’t tell what was real and what wasn’t!
However, there are exceptions to the rules of trademark law. If you’re writing a book that takes place in a fictional world and uses brand names as part of the story, then you may not need permission from the company whose name you’re using. This is called “fair use,” and it’s designed to protect artists’ rights—including writers’.
When you use another person’s brand name, you may need their permission.
If you use someone else’s trademark without permission, the person who owns that trademark and fulfilled the process to register brand name may be able to sue you for copyright infringement or trademark infringement. If they win their case against you, they could be awarded damages for the harm you caused. These damages can include money, but also injunctions preventing further use of their brand name and other remedies. In extreme cases where there has been intentional deception or confusion by using another person’s trademark without permission, courts have awarded punitive damages (sometimes called exemplary damages) in addition to compensatory ones as punishment for having acted maliciously toward the owner of a marks.
Trademark infringement is both a federal and state crime, so you can be prosecuted by both the government and the owner of the mark. If convicted, you could face hefty fines and even time in prison.
Even if you’re not convicted of trademark infringement, the legal costs of defending yourself against such a lawsuit can be very high. Even if you win your case, it will likely take months or years before the issue is resolved and you can continue with your business as usual.
If you’re writing an article about the quality or price of a product, that’s considered informational. If it includes a review of how to choose the best ABCD brand widget for your needs and offers recommendations, that’s also informational.
However, if you’re writing a news report and mention XYZ as an example of something happening in the industry or community—even if XYZ is one of many examples—then your article is not considered promotional and therefore does not require authorization from XYZ (or anyone else).
If you are writing informative content on how to choose the best ABCD brand widget for your needs, then again there is no need for permission at all.
As the author, it’s your call to determine whether or not a use of a brand name is editorial or promotional. If you’re writing something like ten ABCD brand widgets we love…that might be promotional because it implies endorsement from the brand. You might need permission to use their name.
On the other hand, if you’re writing something like ABCD has been making these widgets for years and they’re great…that would be editorial because it doesn’t imply any kind of endorsement from ABCD (or anything else). Just stating facts about their product line doesn’t require permission from them.
If you’re writing something like ABCD has been making these widgets for years and they’re great…that would be editorial because it doesn’t imply any kind of endorsement from ABCD (or anything else). Just stating facts about their product line doesn’t require permission from them.
For example, in the US, if you make a parody or send up an original work using a trademarked product (like “I <3 Scandal”), you may have some leeway under fair use laws that protect criticism. But this is only true as long as you are not hurting the market for the original product—so if your parody becomes more popular than its source material, then you’re likely in trouble.
If in doubt, just ask!
If you are confused about whether a brand owner has the right to stop you from using their product name, just ask! There are several ways that you can contact the brand owner. These include:
- Asking a trademark lawyer
- Asking the brand owner’s lawyer (if they have one)
- Contacting the PR team of the company behind the product or service (this is especially useful if you have been asked to remove content by someone who may not be an official representative of the company)
Asking the brand owner directly regarding US trademark application (this will usually be through their social media accounts)
If you’re unsure about what you can or can’t do, just get in touch with the brand owner and ask them. They’ll be happy to give you their opinion, and they might even offer some helpful tips for how to avoid any issues.