Joseph Perry, Esq.
Can I Use Brands in My Novel?
The short answer is yes. Just be careful not to violate trademark laws or defame any companies. Below is a very short introduction to try to help you.
Trademark infringement is the unauthorized use of a trademark or service mark. There are several defenses to trademark infringements that authors can potentially rely on when using famous brands in their novels, including the first amendment. One, in particular, is worth nothing that authors may want to familiarize themselves with: nominative fair use.
Nominative fair use occurs when a third party uses a protected trademark to describe or “name” the protected trademark owner’s goods or services (for example, using the name “New Kids on the Block” in a newspaper poll to gauge the group’s popularity).
In addition, famous brands can sue third authors for trademark dilution, which comes in two forms: blurring and tarnishment. Blurring decreases the uniqueness of famous brands (for example, the unauthorized use of Nike on silverware products). Tarnishment occurs when a third party uses a trademark that harms the reputation of the trademark owner (for example, the pornographic film “Debbie Does Dallas,” in which the characters resembled Dallas Cowboy cheerleaders, harmed the Dallas Cowboys trademark).
Please note that trademark defenses vary by circuit, so take note how they may apply where you are located.
The other item you want to avoid is defaming a company. For example, be careful of making claims that a certain product is dangerous or defective.
If you’re ever in doubt, fictionalize the brand names and companies.