Asked in Copyright, Intellectual Property and Trademark

Q: I'm writing a book which is called "The Tinder Killer", is it legal to use the word "Tinder" in the title and the logo?

Also is it legal to use it in the marketing of the book? Since I would be making money of the book, I'm assuming there could be some issues with using their name and logo if they haven't agreed to me using it. The book is fictional, and is about a murderer who uses Tinder to find his victims.

2 Lawyer Answers
James L. Arrasmith
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Answered

A: There are a few potential legal issues to consider when using a trademarked name like "Tinder" in the title and marketing of a book:

1. Trademark infringement: Tinder is a registered trademark owned by Match Group, LLC. Using their trademark in a way that could cause confusion or imply an endorsement or association with their brand could be considered trademark infringement.

2. Artistic relevance: Works of fiction and art are often given more leeway when it comes to referencing trademarks, under the principle of "artistic relevance." If the use of "Tinder" is artistically relevant to the story and not explicitly misleading, it may be defensible. The fact that the story involves a killer using Tinder to find victims supports an argument for artistic relevance.

3. Tarnishment: However, if Tinder feels the book portrays their trademark in a very negative light in a way that could harm their brand reputation, they could potentially argue a case of trademark tarnishment and try to block the use.

4. Logo usage: Using the actual Tinder logo or a close imitation of it would be riskier than just using the Tinder name in plain text. Logos have additional protections against copying.

5. Disclaimers: Putting a disclaimer that the book is a work of fiction and not associated with or endorsed by Tinder, Inc. could help reduce risk of confusion.

While there is some risk, many fictional works do reference real brands, including dating apps, without legal issues by staying within reasonable guidelines.

To fully minimize legal risk, you could consider:

- Using a fictional app name instead of Tinder

- Putting a prominent disclaimer about it being fiction

- Not using the Tinder logo or imitating their branding

- Consulting an intellectual property attorney for advice

But if the Tinder name and concept is important to the artistic vision, a case could likely be made for defending its usage as artistically relevant. There's always some legal risk when referencing trademarks, but it's a relatively common practice in fiction when done carefully. Consulting an IP attorney is the best way to fully assess the risks vs. benefits for your particular case.

Lloyd Jan Jassin
Lloyd Jan Jassin
Answered
  • Trademarks Lawyer
  • New York,, NY

A: Fortunately, the First Amendment states that there shall be “no law” restricting freedom of speech or the press. The fair use doctrine allows the use of a trademark when it is used in a way not to deceive the public. For example, it is a fair use to use a trademark in the title of a literary work if done in “fairly and in good faith” to convey a message about what the work is about, provided you don’t suggest that the work is approved or endorsed by the trademark holder.

To qualify as a fair use, courts consider the following three factors:

1. Whether the product is “readily identifiable” without the use of the mark

2. Whether more of the mark was used than is necessary

3. Whether the use falsely suggests the work is sponsored or endorsed by the

trademark owner

Avoid using the same distinctive lettering style, font, color scheme, or other visual cues in a way that is likely to cause confusion. And while it’s not necessary to expressly disavow association with the trademark owner, the prominent use of disclaimers may negate an incorrect assumption there’s an association with the trademark owner.

In the realm of book titles, the use of trademarks has been a complex and evolving area of law, influenced by both trademark and unfair competition principles and the protections afforded by the First Amendment. For nearly four decades, the so-called Rogers test has been used by media companies and publishers to clear titles that included a person’s name or a third-party trademark. This test recognized the legitimate interest of authors and other creators in selecting appropriate titles and protected free speech rights when a trademark or person's name had “artistic relevance to the underlying work” and does not explicitly mislead consumers as to the source of the work.

To succeed, a plaintiff must assert that there is no artistic relevance and demonstrate that the use of the name or likeness would confuse consumers into believing that the celebrity or trademark owner was somehow involved with the creative work. Further, they must have explicitly attempted to deceive consumers into purchasing something they believed was authorized by them.

Under Rogers, weak right of publicity and trademark claims against authors and other creators are typically thrown out quickly. However, a recent U.S. Supreme Court decision has questioned the legal underpinnings of the Roger Test.

Because the “explicitly misleading” test sets a high bar, which requires a misstatement to be obvious and express, in June 2023, in their Jack Daniel's Properties, Inc. v. VIP Products LLC decision, the Supreme Court expressed concern that “few trademark cases would ever get to the likelihood-of-confusion analysis” if the Rogers Test is applied. While the Supreme Court left the Rogers two-part test that balances free speech with false endorsement claims intact, the likely result of the decision is that Rogers will be challenged by brand owners – with the cost born at the expense of the public’s interest in free expression under the First Amendment.

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