On 3/17/99, Stan Morris <smmorris[_at_]rmii.com> wrote:
>
> I was asked if a work of fiction mentions a trade name, as a part of
> the background, must permission be obtained to use a trade name be
> obtained. The author's use was "It's like trying to nail Jello to a
> wall." His character also drives a Chevrolet. If he uses Chevy is
> that covered?
The short answer is: the Lanham Act permits "fair use" of trademarks, and such use (which would include the uses you describe) does not require permission. The idea is that those seeing references to the trademark will understand that they don't suggest sponsorship or association with the source of the products they are used on, so there is no chance for confusion.
The longer answer is, how fair use works seems to depend on the medium on which marks are referenced. Hollywood figured out years ago that rather than ask for permission to show product trademarks in an incidental way (such as the hero taking a slug of vodka in a way that shows the bottle's label), it could instead get paid for product placement. This is tricky: for those who know about product placement, the incidental appearance of a trademark in a movie *does* imply sponsorship! However, I would expect that such incidental use of trademarks in movies also should fall within fair use, and not require permission.
The incidental appearance of trademarks in computer games, in comparison, raises other issues. In games a mark is usually not incidentally photographed or referred to, but is intentionally drawn. What if the mark is drawn inaccurately? What if its use suggests unflattering things about a product? I think these things should also be protected by fair use, but others disagree.
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