Re: copyright or trademark

On Tue, Mar 16, 1999, Stanley M. Morris <smmorris[_at_]rmii.com> wrote:
>
> This is maybe off topic but: 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?

Incidental use of a trademark or trade name in the context of a work of fiction is not a trademark use, and therefore not potentially infringing. It is also not a "commercial use in commerce" and therefore not potentially diluting. It is in all probability what Judge Alex Kozinski (in the New Kids on the Block decision) referred to as a "nominative fair use" -- in other words, it's o.k. to use a trademark in order to refer specifically to the product or service associated with that trademark. The nominative fair use idea is this: you can't refer to Jello without using the word Jello, so it's o.k. to do so as long as it is not a commercial use that could be perceived as trading on the goodwill of the Jello people. Certainly no special permission is required to mention product names in a work of fiction. Take a look at a Stephen King novel sometime.

Bob Cumbow
cumbr[_at_]perkinscoie.com
206-583-8566 Received on Wed Mar 17 1999 - 19:42:45 GMT