17

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.

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    Have you asked the tailor if he minds being referenced? While we have opinions about stuff and some can be backed by fact or not. Doesn't it seem likely publishers have opinions and facts and similar idea's like we do? Except, I do imagine that they know what to do with this kind of information. – Totumus Maximus Jun 6 '18 at 11:20
  • @TotumusMaximus No, to be honest, I didn't even think of contacting them. At the moment, I don't know if I'll even get picked up. But if I do get a contract, I'll do that -- thanks! – GGx Jun 6 '18 at 11:48
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    Since you can easily make the change, I'd submit it as is, and ask the publisher if they like the book. They will know what they are comfortable with; and tell you if they will seek permission on your behalf, or if you must, or if they prefer you change it. In a negotiation you should not generally front-load your discussions with questions and caveats; but you should discuss such things before signing any contract offered. The contract offered implies strong interest, which can withstand such inquiries. Too many complications up front may prevent that strong interest from ever developing. – Amadeus Jun 6 '18 at 14:00
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    Actually, it subtracts! If you invent one, 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. – Amadeus Jun 6 '18 at 14:34
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    Harry Potter and the Philosopher's Stone no less (before JKR had any real clout too!) makes mention of Mars bars by name – Au101 Jun 6 '18 at 18:19
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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.

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    Plus, when your book takes off and people demand more content, you have a character they've been DYING to see the backstory to! – corsiKa Jun 6 '18 at 16:29
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    I disagree. As a reader, if the book is set "in real life" I would rather have the real life guy mentioned than have to wade through descriptions of a fake world class designer .... unless that new designer is truly part of the story. And if he/she is important to the story, the OP would've already made them a character. – Dragonel Jun 6 '18 at 16:44
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    @KellyS.French That is what I meant is avoided, by "Your fictional world champion need never die." The risk is always breaking suspension of disbelief. Nothing can do that faster than talking about a RL person in the present tense that the reader knows died last year. Or talking about a RL person in great admiration, that the reader knows is now serving 20 years in prison for child molestation, or drugging women and raping them, or some other horrific crime. Fictional characters don't die unexpectedly and don't get into scandals unless you write them. – Amadeus Jun 6 '18 at 17:06
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    Like @Dragonel I think this might be good advice if the brand is part of the story, but what if the OP just wants to show a character is rich say. If I read a story and a character stays at the Ritz and glances at his Rolex and drives his Ferrari, I know he's got money and he's throwing it around and stuff. If I read a story where a character stays at Madam Joiner's hotel, looks at his Puffin watch and drives a Creo Major, I know nothing, and if the author has to explain that these are awesome hotels, watches and cars, well then the only thing that comes to mind is xkcd.com/483 – Au101 Jun 6 '18 at 18:13
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    @user31740 If you want to show the character is rich, show scenes of him spending money. IMO brand names are a shortcut, and not a reliable method; the character could be a con-man, the Rolex could be a counterfeit. Look at the everyday dress of Bill Gates, Warren Buffett, Mark Zuckerberg, Steven Spielberg -- all billionaires, and if you didn't recognize their face, you'd never know it if you passed them sitting on park bench. Using brand names to demonstrate wealth betrays a lack of imagination by the author. It can equally demonstrate egotism, insecurity or narcissism. – Amadeus Jun 6 '18 at 18:39
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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.

  • thanks... I was trying to think of books I've read recently with brands in them and couldn't think of one. I know it happens in TV and film but this is usually paid advertising. Good to know it happens sometimes. It's not negative at all, the opposite actually. But I've seen answers on the other questions that say brands don't want their names mentioned one way or the other. I think I'll leave it in and contact the company for permission if I do get a deal. – GGx Jun 6 '18 at 11:52
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    Not just in a negative context, some people argue that the brand's name being included in a work, one way or the other, means either the work endorses the brand or the brand endorses the work. So they usually want to be on the safe side and not get mentioned at all. Asking them will clarify things and getting written permission, such as a mail, from them will provide cover for you, should the need arise. @GGx – John Hamilton Jun 6 '18 at 14:15
  • @JohnHamilton Thanks, John. I hadn't thought about it in that way, that it suggests an endorsement, that makes sense. In that case, I definitely need permission even for a mention. The question still remains whether it really adds anything and whether it wouldn't just be easier to fabricate an expensive suit maker. – GGx Jun 6 '18 at 14:17
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    @GGx Well, I don't know whether one would be better than the other, but, if you're typing it in a computer, keeping a dummy name like ReallyGoodExpensiveSuitMaker will allow you to later change it easily (with a find and replace function in your favorite text editor) if, later on, you get permission or just decide on a name yourself. Keep in mind that not everyone will know what the brand is today let alone the future, so treating it like an imaginary shop that you have to explain might be a good idea regardless (at least in a sentence). – John Hamilton Jun 6 '18 at 14:24
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    Further examples: Dan Brown packs brand-names into his books. Ian Fleming had James Bond declare a preference for Taitinger Champagne, and then switch allegiance to Dom Pérignon. Loads of writers refer to cars by brand, if not also by model. – Peter Taylor Jun 6 '18 at 16:11
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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.


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.

  • Thanks. As per my comment/question to Amadeus above, what is your opinion on this? Would you just make the problem go away by fabricating brands? Do you think the use of a real brand really adds anything? – GGx Jun 6 '18 at 14:10
  • In my book, the brand gets a lot more attention than a quick mention. It would be the equivalent of saying, 'Every one of her dresses was made to measure by Donna Karan herself and shipped over from the US. They're the battle suits she wears in the courtroom.' Does Donna Karan add authenticity and specificity to the description? Would it have any less impact if I made up a random name like Janet Smith? Thx!!! – GGx Jun 6 '18 at 14:32
  • I suspect the brand is only well-known to very rich people. He doesn't have a high-street brand like Donna Karan. As usual, everyone's been so helpful on here. I think fabricating is definitely the way to go. Thanks!!!!! – GGx Jun 6 '18 at 14:48
  • This answer seems a bit odd to me. I don't know much about writing but I know slightly more than not much about copyright and trademark law, and I don't think those laws allow the owner of a copyright or trademark to control its use in that way - for example, as far as I know, they don't provide a legal basis for Donna Karan or her company to prevent a writer from using the name "Donna Karan" in a story, regardless of whether permission is given. – David Z Jun 7 '18 at 2:03
  • Well, I think my objection is really to the fact that your answer seems to be saying "you can't use brand names because copyright law forbids it", whereas if it were saying "you can't use brand names because publishers are reluctant to take the chance that they'd get sued for it", I would think it a better answer. Maybe a change to the first paragraph to emphasize that "the problem" you mention comes from the publisher, not necessarily from the law, would help. – David Z Jun 7 '18 at 2:13
5

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.

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    "It sounds like you're saying that you want to use a real brand name just because the name evokes luxury products" Yes, that's exactly what I'm doing. And issues with mass search and replace are precisely why I want to make a decision now rather than later. If I'm going to fabricate a brand, I'll need to change the wording to fabricate it, it's not just a case of search and replace. This is all very helpful and informative, thank you. – GGx Jun 6 '18 at 14:57

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