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I am writing a pivotal scene for my novel that is set in Red Square of Moscow. A very wealthy bureaucrat is leaving a famous, high end store that exists in real life.

Is it considered trademark infringement to mention the names of actual businesses or services (like hailed an Uber cab) without obtaining expressed written permission from the company? One legal site gives several examples stating that as long as it doesn't cause the corporation harm it's okay, but that sure seems open to interpretation if one were writing a story suggesting a murderous Santa is lurking in Macy's.

http://www.rightsofwriters.com/2010/12/can-i-mention-brand-name-products-in-my.html

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    It would be hard to add anything to the excellent advice contained in the article you linked yourself. – Chris Sunami Mar 5 '18 at 18:10
  • Yes, I agree, but I also am a patent holder and worked with patent attorneys. It is all about intent, my intent is simply to mention GUM as a very nice high end store located in Red Square. It is frequented by the elite of Russia and see no reason not to mention it by name because it is that famous (like saying the Louvre or Tiffany's) – Richard Stanzak Mar 5 '18 at 18:14
  • Are you concerned about Russian law? There is one quirk there that a copyright has to be registered per industry. That leaves the use of that copyright outside of registered industries a "free for all". Several years ago there was an amusing case when a small egg manufacturer started selling eggs under a brand and logo of a leading cellphone provider. That provider (MTS) didn't register its trademark for food products, and egg manufacturer took advantage of that. Having said that, there is 99% chance that you are good, but should anyone sue you in Russian court, results would be unpredictable. – Alexander Mar 5 '18 at 19:21
  • I have some experience with patent law but not copyright law. My impression is it is left purposefully vague. If the use of the copyright proves beneficial it is at worse ignored, but if it is deemed as some way negative the writer is at risk of infringement. Since the brand name is only mentioned in passing as a landmark, I think in my case I am safe. However I am not sure I can generalize this like my cited article suggests. International copyright laws only complicate these issues as you correctly point out. – Richard Stanzak Mar 5 '18 at 19:34
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    In theory name-dropping a real company is fair use. In practice if you disparage the real company in question they'll probably fire off a lawsuit at you to shut you up. Even if the lawsuit itself would have no actual merit in court the company knows you probably can't afford for it to go to court whereas they can. – GordonM Mar 7 '18 at 9:43
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Answering the question you asked literally: "No". Copyright doesn't apply to names, either of people or companies, so it isn't copyright infringement. Trademarks apply, but generally trademarks can be used as long as nothing you do is likely to confuse people into thinking that you're operating on behalf of the trademark holder. What you do need to look out for, though, is defamation (either libel or slander). It's a grey area, but at least in principle as long as you are clear that what you're writing is fictional and therefore wouldn't make a reasonable person think that it was actually true, or alternatively if what you write is something that is clearly a matter of opinion or that there is enough actual evidence to believe that it is true then you should be OK. This is why a lot of films have disclaimers at the end that state the story is fictional and isn't intended to say anything specific about real people or companies: just to make sure nobody can claim you were intending people to think it was true.

Of course, this is only really an issue if you're planning on self-publishing your work. If it's published by a corporate publisher, then (1) it is the publisher who would be liable for such issues and (2) they have lawyers who would double check everything before publication, and they can always ask you to make changes to be sure there's nothing wrong.

(As always: for legal issues like this, you should generally consult a specialist in your own jurisdiction's laws. The above is not legal advice.)

  • I like your legal interpretation and its attached disclaimer. You are absolutely correct about Trademarks I shall revise my question to show your correction. Thanks – Richard Stanzak Mar 7 '18 at 12:21
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Your main concern regarding the use of "real" businesses is "defamation."

So use real businesses only for the "background" for your work of fiction, not a main setting. For instance, "The loving couple stopped at a McDonald's for lunch, before heading to the park to make out." What you don't want to do is to allege that the couple actually had sex in a McDonald's outlet (and management let them do so).

  • What if you wanted to write a parody referring to a scene involving a fictional fast-food restaurant but with an original name, but the details are derivative (as it’s for satirical purpose) would that be serious? – Edmund Frost Jun 15 '18 at 16:17
  • @EdmundFrost: In a "parody," i might refer to the "jolly green arches," but with no name, and leave people guessing as to whether I'm referring to McDonald's or the jolly green giant. – Tom Au Jun 15 '18 at 19:48

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