What are the rules for using Trademarked names?

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What are the rules for using Trademarked names?

Post by Philabuster » December 1st, 2013, 6:01 pm

In my current MS I make a reference to Monopoly, The Los Angelas Lakers, and The Price is Right. Am I allowed to do this or do I need to change the verbiage so the reader knows what I'm referring to without actually mentioning the name?

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Re: What are the rules for using Trademarked names?

Post by AnmaNatsu » December 1st, 2013, 9:10 pm

In general, as long as it is a positive reference, it's fine. It's considered incidental use. You couldn't use their logos or the like, but just mentioning them is fine.

Here is a pretty good article on it: http://www.rightsofwriters.com/2010/12/ ... in-my.html
Writer of love stories and host of "The Lackadaisical Writer" podcast
Debut novel, Aisuru, coming in 2014!
Official Website: http://anmanatsu.com

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Re: What are the rules for using Trademarked names?

Post by polymath » December 1st, 2013, 11:08 pm

The only way a writer or publisher can have total peace of mind from litigation about using anyone else's intellectual property is to ask and receive express permission for the publication use. Without express permission, the best practice is to seek expert legal advice, However, iintellectual property attorneys are among the most costly of attorneys. Other attorney banned word in other areas of the law are not competent to give intellectual property law advice. Like much of the rest of society, they may be under illusions that incidental uses are unfettered, allowable uses. Incidental use is not a blanket protection in any sense of legal due diligence duties.

Incidental use is an intellectual property court respondent's affirmative defense for using a trademark or copyright or patent not owned by the respondent. Incidental use is not on its face a valid excuse to use an intellectual property without express permission. One of many infringment claimant' answer and counterclaims to an incidental use claim is a claim of dimunition of value from the use. Dimunition of value is a powerful doctrine of trademark law.

The intellectual property court claimant and respondent process goes round and round in a complex mryiad of claim and counterclaim. claim and response, answer and rebuttal, interrogatory and answer, subpoena and injunction and cease and desist demand and other demands when both sides have the resources, the means and the motivations, and legal standing to pursue litigation. Legal costs in intellectual property cases are enormous, not to mention damages awards. On top of that, the winning side may claim legal expense recovery from the loosing side and win that claim too.

Intellctual property infringments and court cases follow the money of deep pockets. In some cases a respondent infringing may be liable for damages that confiscate all the infringer's assets. In some cases, if there's no money in litigation, other remedies exist for claimants: injunctions against further sales, discontinuing publication, and recall demands, for example. In some cases, writers and publishers get away with infringing uses simply because an intellectual property owner is not made aware of the infringment, can't be bothered with trifles, or couldn't care less. In some cases, intellectual property owners will use the full extent of legal remedies and not be bothered about the expense.

A straightforward dimunition of value claim may trump an incidental use claim and have superior legal standing due to the one certain prescriptive aspect of intellectual property law: Express permission is an inalienable legal requirement, with a few narrowly construed exceptions. Regardless, all intellectual property disputes are subject to and only heard in proper jurisdictions of law; to wit, federal intellectual property courts. Local, regional, or state jurisdictions may have standing in a few legal areas in select jurisdictions; however, intellctual property disputes have superior federal court jurisdiction.

Rumors that using trademarks are protected for incidental uses are not expert legal advice, which is a best practice in any regard. What constitutes incidental use is open to legal interpretation only in a proper court of law, not open to public opinions that are little more than gossip and superstition. One extreme of possibles is a trademark owner may believe that a use, however incidental or infringing, may be valuable publicity no matter how derogatory or neutral or favorable a use is. The other extreme may believe that any use is infringing, no mnatter how favorable, and have substantial legal standing for that position.

For peace of mind and as the most economical best practice, ask and receive express permission before using for publication anyone else's intellectual property.
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