If I use a proprietary name in a work of art/literature I create, do have to pay them? 6 Answers as of June 19, 2013

If I write a story or paint something where my character drives a Ford Fusion, drinks a bottle of Coke, or listens to Metallica, do I have to pay royalties or something to the holders of those names? Do I have to even acknowledge/contact them in any way?

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Gerald Walsh | Gerald Walsh
You can use proprietary names in a written story but you may not be able to use pictures of products that may have copyright protection or patent protection.
Answer Applies to: Alabama
Replied: 6/19/2013
Sebby Law Office
Sebby Law Office | Jayne Sebby
As long as the product is "in the background," there shouldn't be a problem. You're just providing free advertising for the company. However, you need to be careful that you don't blacken the image of the product or company (ie: only bad people drive Fusions).
Answer Applies to: Nebraska
Replied: 6/19/2013
Banner & Witcoff, Ltd. | Ernie Linek
If used properly - this would be a "fair use" of the trademarks - and you do not need permission.
Answer Applies to: Massachusetts
Replied: 6/18/2013
Law Office of Kirk Buhler
Law Office of Kirk Buhler | Kirk A Buhler
In general, if you are using the name to sell your product then yes. If it is just part of the story then probably not. It may also depend upon how you are using the name. If you cut it out of a magazine the there is no problem, if you create a duplicate of the logo then there is a chance. In movies companies pay to have their product placed within the movie. You could acknowledge that the logo is owned by a particular company.
Answer Applies to: California
Replied: 6/18/2013
Eminent IP, P.C.
Eminent IP, P.C. | Paul C. Oestreich
No. What you are proposing amounts to free advertising. Most mark holders would welcome the free advertising as long as it is not disparaging of the marks in question. From a trademark infringement perspective, the mark holders tend to take issue with your use of their marks if you creating a likelihood of confusion in the marketplace by trying to pass of your goods using their marks. So, as long as you are not trying to sell a that looks like a Ford Fusion, using Ford's trademarks, or a soda that looks like Coke using Coca Cola's trademarks, or music that sounds like Metallica using Metallic'a trademarks, you should be fine. An acknowledgement that the proprietary marks you have used belong to their respective trademark owners is always a good idea. Of course, you should consult an intellectual property attorney to fully explore your proposed use of the marks in question and then properly advise you in view of relevant case law.
Answer Applies to: Utah
Replied: 6/18/2013
    Mark S. Hubert PC
    Mark S. Hubert PC | Mark Hubert
    If in your book the hero drinks a coke there is no problem. However if he disparages Coke therein you may have problems.
    Answer Applies to: Oregon
    Replied: 6/18/2013
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