Fictional products don't violate trademark laws

The lawsuit was completely unwarranted and inappropriate, because trademark erosion isn’t a form of infringement (and competition doesn’t come into it). Erosion is, however, ultimately about the trademarked name not (just) being associated with the one particular product. So creating a fictional product with the same name does contribute, in some (albeit small) way towards doing that. Legally, there’s nothing a company can do in response to erosion, however, except ask people not to do it (something everyone is free to ignore).
I’m honestly slightly surprised the ruling went the way it did, even though legally the filmmakers were entirely in the right. Expectations about intellectual control over one’s products have become absolutely insane these days. Working, as I do, in video games, it’s become almost impossible to include references to real products or brands without the consent of (and payments to) the manufacturers. Not because of any real aspect of copyright or trademark law, but because of expectation and precedent, weirdly. So to make a game with a real car, it’s expected (upon pain of lawsuit), to license that car’s appearance from the manufacturer, which also has say as to how the car will appear and function within the game. (Whereas the appearance of a particular car in a TV show or movie, if anything, generally indicates product placement paid for by the maker.) EA actually was sued by Bell helicopters for depicting a real helicopter in one of their games. EA apparently settled out of court, which is total madness.

I sorry but I don’t think you quite get it. This isn’t really about “eroding trademarks”, and that’s because a trademark wasn’t ever designed to just protect language itself from open use. Trademarking as a concept was designed to protect company and product identity against direct competition, and that’s why (among other restrictions) similar companies can’t use overly similar trademarked concepts.

Trademark erosion is a trademark becoming a generic term, like aspirin (once generically called “analgesics”). It’s not always a bad thing, either. Some companies actively seek out erosion because it means their name will be associated with the idea behind what they sell - one recent example: Google. “I’m “googling” something” means “I’m using a search engine on the web to look it up.”

Here are the basics for what you need to consider when choosing a trademark, and figuring out if it will infringe on an existing mark.

The movie lawsuit was completely unwarranted - because the concept of the fictional business was unrelated to the real business. It also didn’t present competition to or make a claim about the value of the real business. So it in no way was a problem for the continued operation of the real business.

Generally speaking, the greater the distinction, the less chance that you’re stepping on anyone’s trademarked toes. So if you write a story where a business is named directly after a real-world business, just make it one from an unrelated field. @sockdoll had exactly the right idea.

Your EA example is more than a little different than naming. EA included, not one, but three separate Bell copters in Battlefield 3. They were fully-developed 3D models of the real world aircraft, and Bell was paid no licensing fee. EA’s claim was that the helicopters were already out there in the public eye, so of course it was “fair use” for them to take their images and build 3D models on a for-profit game with no consideration to the actual company - even though the helicopters in the game were represented as the real world products (including by name). BTW, it was EA that sued first - they preemptively sued to get the location they wanted for the action. It didn’t help.

Japanese law is much stricter. As a result, anime characters regularly search the internet with sites called Gaagle, or Hooya or something. It’s adorable.

They do that in American TV shows all the time, even though they usually don’t legally have to.

Sometimes it makes sense: you don’t want to piss off a major airline by showing one of their planes go down on your TV show, so instead you use a realistic-sounding company like Oceanic Airlines. But why the hell does everyone on TV use a search engine called “Finder-Spyder?” Are TV producers really worried Google is going to sue them for implying that people use their product to find things online?

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Yep - just check out the drinks on most TV shows. The props aren’t wearing standard labels. They’re sticker wraps that cover cans and bottles so no one gets sued.

Even the newspapers aren’t real:

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Are they ever, really? :wink:


Pepsi was also the name of a character in Shary Flenniken’s long-running “Trots & Bonnie” comic in National Lampoon.

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Why would you pay for a drive cleaning tool when you can use DBAN for free? Or just use the secure erase command that’s part of the ATA spec.
Unless you’re expecting someone with nation-state levels of resources to be trying to get your data, then either of these approaches would be fine, otherwise just open the drive up and smash the platters with a hammer.

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Isn’t some of that to do with wanting to be paid for product placement too? Some executive on an ego trip decides that if Coke or Pepsi won’t pay for it, then they’re not getting any free advertising.

Naw… I was the one who made the lame joke about a check denominated in Bat Bucks drawn on the Bank of Gotham. You must be thinking of @peemlives Still, it’s nice to be noticed. :smiley:

Yep - Sorry @peemlives, in a long thread, I got confused and failed to give ya proper credit. My bad. Thanks for pointing it out @sockdoll ! :slight_smile:

Yep - for media it’s really both sides involved. Everyone’s greedy, and no one wants their product “misused” - so unless a product is licensed, it’s not likely to show up with a name tag displayed.

It’s important to remember that commercial TV costs money to make, and those name drops are deliberate. A few years ago they started digitally adding placed products into episodes so they could lead in to connected advertising (a box of cereal would appear on a kitchen table only to then be advertised at the break). Those digital placements weren’t permanent - they only lasted for an airing.

I always assumed that it was because they couldn’t find somebody who was willing to pay to have their website in the show.

Edit: I see @jardine pointed out the same thing…

I bet it would be fascinating to sit in on some of those development meetings. For example, how much did Mountain Dew pay to have Michael Bay depict their product going on a murderous rampage in Transformers?

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“Ditko’s Amazing Original Ale” from Parker?

Was that from any particular movie?

One of my favorite examples of product placement ever is Master Tang in Kung Pow singing the Taco Bell product placement song:

Have those beer bottle labels been approved by Battle?

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Supposedly a British TV pilot called “No Heroics”.

The story I like is Demolition Man. In the version released in the US and Canada, the only restaurant that survived the franchise wars is Taco Bell. In real life though, there weren’t many Taco Bell locations outside North America, so for international releases, they changed it to Pizza Hut. Both brands are owned by the same parent company.

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