Louisville, KY asked in Trademark, Copyright and Intellectual Property for Kentucky

Q: Do trademark prevent people from mentioning their brand at all in a story?

For example

If someone wrote a story, would he be in trouble if he wrote

Lorraine cherish her chevrolet silverado she got from her late father. As well as her Gameboy from her departed sister. The old xbox, which was a trade for a psp, she got from her cousin no longer works but she bought an xbox 360 and a deck of UNO to keep her entertained while work at Mcdonald is slow.

1 Lawyer Answer
James L. Arrasmith
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Answered

A: In general, simply mentioning trademarked brands in a story would not be considered a violation of trademark law. Trademarks are designed to protect brands from being used by others in a way that could confuse consumers about the source of a product or service. However, when a trademarked name is used in a descriptive or referential way, it is usually permissible under the doctrine of "nominative fair use."

In your example, the mentions of Chevrolet Silverado, Game Boy, Xbox, PSP, UNO, and McDonald's are not being used to sell competing products or to confuse readers about the source of these items. Instead, they are being used to describe the character's possessions and workplace, which falls under nominative fair use.

However, it's important to note that if the story portrayed these brands in a very negative or defamatory light, there could potentially be legal issues, not necessarily related to trademark law but possibly defamation. As long as the use of the trademarks is reasonable and not misleading, it should generally be acceptable in a fictional story.

It's always a good idea for writers to be cautious when using trademarked names and to consider whether the use is necessary for the story and if it could be seen as infringing or defamatory. In most cases, though, simple mentions of real-world brands in fiction are commonplace and not a cause for legal concern.

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