How can I safely use "Thalidomide" in my novel while respecting the trademark?

Question

Thalidomide is a tricky one, as I am referring to its disastrous past regarding birth defects; however, Thalidomide is still used as a immunomodulatory drug today - and even though its used under another name, I'm worried about using the trademarked "Thalidomide" in my novel (One I plan to publish).

Although I try my best to avoid trademarks like the plague, I'm not sure how I can write, especially negatively, in regards to this medicine and the disaster while legally protecting my novel and any subsequent revenue.

Although I could create a pseudonym for "Thalidomide", I do not want to go this route - I reference other important historical events in my novels as well and want to stay as realistic as possible. If possible, I would like to use its actual name.

Answer 1

Here is the entry for thalidomide in Merriam-Webster's Ninth New Collegiate Dictionary (1983):

thalidomide n {phthalic acid + -id- (fr. imide) + -o- + imide} (1962) : a sedative and hypnotic drug C₁₃H₁₀N₂O₄ that has been the cause of malformation of infants born to mothers using it during pregnancy

What this entry means is that thalidomide is a generic name for a chemical compound—like aspirin. It isn't a proper name and therefore should not be capitalized.

According to the Wikipedia article on thalidomide, the drug was sold under the following trade names:

Contergan, Thalomid, Immunoprin, Talidex, Talizer, Neurosedyn, Distaval and many others

But if you use the generic term thalidomide, you aren't pointing to any specific brand sold during the 1950s (or later) and, again, you shouldn't capitalize the word.

Answer 2

The other answers correctly point out that "thalidomide" is a generic drug and is not trademarked. But I'd like to answer the more general question, which is if/how you can refer to a trademark in a work of fiction.

In a website article, Using Trademarks in Fiction, the author describes 3 issues to consider: “product disparagement,” “trademark dilution” and “trademark tarnishment.”

Product disparagement would be the main issue in your work. Technically it's only a problem if your claims are false, but we know that large companies will bring suit anyway if they feel the need. The costs for them in a garbage suit are few but they can control the press and bankrupt the writer. In the US, it doesn't matter if you're right, it matters if you can pay your lawyers.

In another web article, Can I Mention Brand Name Products in My Fiction?, the author focuses on 4 issues: "trademark infringement," "trademark dilution," "trademark tarnishment,"and "defamation."

Here, we also have recommendations of an abundance of caution. Big companies can be really touchy.

For example, the director Danny Boyle, told the press that he caused Mercedes Benz logos to be digitally removed from cars in his film Slum Dog Millionaire when the manufacturer objected to the depiction of its cars in Bombay slum settings.

Makers of movies and TV shows generally are a lot more careful than book publishers, because of the wider audiences and more obvious references.

I have not found legal references for what to do when a product is widely acknowledged as having caused harm. Certainly it is okay to talk about (or even show explicitly) the dangers of cigarettes or lead. These aren't trademarks but they both have powerful lobbyists and industry groups. Remember how the beef industry went after Oprah for talking about mad cow disease on her show in 1996? She ultimately won, but only after a lot of her time and money.

So it depends. If all you're doing is mentioning that a character has a disability caused by thalidomide, even if it were a trademarked product, you're probably fine, as it is well-documented that these cases happened.

Answer 3

Thalidomide is the generic form of the brand-name drug Thalomid. I would think no one owns a trademark on a generic name. If you are taking thalidomide to treat XYZ, the most common side effects are: … is an example of a name that is geneticized but if the sentence reads; If you are taking Thalomid … then you would be using the brands name.

Answer 4

If you have a character who has a birth defect caused by thalidomide, just use the term. Thalidomide child or thalidomide baby were how this defect was called.

When I was in university, one of the girls in our dorm announced that her younger sister would be joining her. She warned us of two things: Susan was a thalidomide child and DO NOT help her.

Susan moved into the dorm and she was a tough minded girl. In her case, her defect was that her arms were extremely short. Carrying books was difficult for her, but we had been instructed on how not to drive her nuts.

One afternoon, I saw Susan by the elevator of the Humanities building and she had dropped her books. I asked her if she would like some help - an important lesson in respect - and she agreed it would be faster if I helped, so let me pick up a few of her books and give them to her.

Susan once told me that the doctor who prescribed the thalidomide to her mother apologized to her.