Will traditional publishers force you to remove brands?

Question

I’ve read the other questions on this topic but the answers seem contradictory and somewhat opinion-based. Some posters have said you ‘don't want to risk the wrath of corporate lawyers’ (or trademark lawyers) others have said that using brands is good for specificity.

What I want to know is what actually happens in reality in traditional publishing? For those writers out there who have been traditionally published, did your publisher make you remove brands from your books?

I’m working on my final draft which my agents will submit to publishers shortly, and I have a well-known tailor who makes suits for presidents and film stars referenced several times in my book. I’ve used it to demonstrate the wealth of one of my characters, that all his suits are handmade by this very famous tailor.

If the publisher will likely force me to remove this, I’d rather do that now in this draft and come up with a fictional famous tailor.

Answer 1

Using a real-life brand or famous name actually subtracts from your story.

If you invent your own world-class practitioner, you can hype him as the world's best, better than your real life one, unknown to any but the extremely rich, or the up and coming rival of your RL guy. Your RL guy will be beaten someday, by death or a rival or changing styles.

Your fictional world champion need never die. And you'd have to explain the fame either way for readers that do not keep up with who's hot and who's not in business fashion.

Answer 2

Publishers certainly don't always remove brands. Two example from Jim Butcher's Dresden Files:

"I'm hungry," he said, his voice a low growl.
"We can hit a McDonald's or something on the way home," I suggested. (Jim Butcher, Dead Beat, chapter 12

and

“Right,” Thomas said. “Where are we headed?”
“To where they treat me like royalty,” I said.
“We’re going to Burger King?” (Jim Butcher, Small Favour, chapter 10)

I'm going to guess that if you're mentioning a brand in a negative context, the publishers are going to assume the brand isn't going to be happy, and remove the mention. But if it's not negative, that's like free product placement.

Answer 3

To add to the existing answer, the problem isn't with the brand—it's with using the brand when you don't have permission to do so.

While some publishers might discourage the use of brands, others are happy to work with authors in order to secure permission for brand use.

The one thing that a publisher will never want to do, however, is publish the use of a brand where the copyright holder has had no previous knowledge of its use or, worse, has refused to give permission for its use.

One of the responsibilities of editors is to flag the use of brands. At that point, it's up to the author to either replace them with something else, or to work on resolving any possible dispute through the use of those knowledgeable in how to handle such situations. (Large publishing houses will have staff members dedicated to that.)

So, it's not that the use of brands is prohibited, just that they are "flagged" as something sensitive and needing further attention.

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I am updating this answer with some discussion from comments.

Replacing a brand name with a generic name may be simple in some cases ("I need a Band-Aid" becomes "I need a bandage") but might be less acceptable in other cases (you might not want to replace "I need a band-aid solution" with "I need a quick fix").

The source of the problem comes from the potential cost of a trademark (or copyright) holder suing if you didn't obtain prior permission for its use. While they might not win in court, costs around the legal action would still be incurred. It costs nothing at all to refrain from mentioning a brand name, and it costs almost nothing to send a request to somebody who can give you permission to use it. But simply assuming that nothing will happen if you use a brand name without permission would be a poor choice on the part of any publishing company.

Publishers don't have a problem with the use of brand names without permission per se, they simply have a problem with potential liability. They want to make sure that all of their bases are covered. This is not only good for them, but good for you too.

If you use a brand name with permission, then everybody is happy.

Of course, some things are in the public domain and other things aren't. If something is in the public domain, then there's nothing to worry about in the first place. But you should make sure of its status.

Answer 4

I don't think I've ever referenced a real brand name in something I've gotten published, the issue just never came up. So I can't speak from experience with a publisher there. But I've read plenty of book and articles that reference real brand names. It's fairly common for a book to say, "Bob drank a Coke" or "Sally drove up in a new Rolls Royce".

I am not a lawyer, but my understanding is that the two big issues are:

(a) You cannot use a brand name in a way that waters down its meaning. Mostly this means, you can't use it in a way that suggests that it's a generic term for a type of product rather than a specific brand. Coca Cola used to make a regular practice of having their lawyers contact anyone who printed "coke" with a small "c". Owners of trademarks live in constant fear that they will lose their exclusive rights to a trademark. "Escalator" and "Aspirin" used to be trademarks, but the companies lost their rights to them because they allowed them to be used generically.

(b) If you say something nasty about the trademark owner, you risk a libel suit. This isn't really anything to do with trademarks per se, but with the fact that you're saying nasty things about an identifiable person or organization. If you say, "Foobar Company is dumping toxic wastes into the water supply", you risk the same sort of lawsuit as if you said "My neighbor Fred Jones is a child molester".

Of course one publisher might be braver or more skittish than another.

It sounds like you're saying that you want to use a real brand name just because the name evokes luxury products, like, "Fred had made it big. So big that he now wore Armani suits and a Rolex watch." I'd think that would be no problem. These companies don't object to being associated with luxury and style.

If you said, "He wore an armani-type of suit", that might get you in trouble. I'd avoid it.

And of course if you said that some company is run by a bunch of criminals, you'd better be ready for a lawsuit.

If your story just has a handful of references to "Bob wore Foobar suits", then if the publisher comes back and objects, I'd think the problem is easy to fix. Assuming you have the text of the book on a word processing file, you find the first reference, make up a fake company name, and add a few words to identify the significance of the brand. Like, "Bob could now afford to wear Foobar suits, a well-known, expensive and high-quality brand ..." Or, "Bob always envied Fred for his expensive and high-quality Foobar suits, but now he was able to afford them himself." Or some such. Then do a search and replace all other references to the real brand with the fake brand. Of course I haven't read your story, but I wouldn't think a change like that would take more than, what, half an hour?

BTW be careful with mass search and replaces. I've reminded of when a certain popular web site decided that they would not allow user names to include the word "Allah" because of complaints by Muslims about disparaging user names. And so a woman trying to register as "jcallahan", "Callahan" being her actual last name, was told that was not an acceptable user name.

If details about the company are woven into the story, of course it gets harder. Like if there's a point where the fact that the name rhymes with some other word is brought up, you can't just change the name. Or if you mention enough facts about the company that it would be identifiable, like you say that the company is based in Florence, Italy and the founder was a former race car driver and that they sponsor a jazz festival every year -- things I just made up, by the way, I have no idea if that describes any real company, but if it did -- then if you can't use the name you probably can't give such details.