James from Connecticut is writing a story set 100 years in the future and wanted to know how to handle trademarks that, in his fictional setting, might have become generic. For example, Taser being used as the verb to taser, or Google as the verb to google.
He raises a good point. If James is going to be true to his fictional setting, it is inevitable that certain marks will have gained generic status in the future just by the nature of how the public uses the mark.
What then should a writer do? Risk violating the trademark laws and make the world as realistic as possible by writing about a villain who googled her victim’s address, then tasered him unconscious? Or be true to the trademark laws and write about a villain who used a Taser to subdue victims that she stalked on Google?
The answer depends on how risk-averse the writer wants to be.
What is a Generic Trademark?
As a refresher, a trademark is a name, mark, or sign that distinguishes a product of a person or entity from the products of others – Clorox, Hacky Sack, Muzak, Rollerblade. You get the idea. But if you need a quick primer on trademarks and how to use them in fiction, read my earlier Sidebar Saturdays post or see these articles by Kathryn Goldman or Susan Spann.
A trademark is considered generic when the mark becomes the common descriptive name of a certain product category, rather than the indication of the product’s origin. Like Aspirin for a class of drugs known as acetyl salicylic acid, not the manufacture’s brand name. Or Trampoline for a “rebound tumbler.” Trademark history is replete with genericized marks – cellophane, videotape, escalator, thermos, zipper, just to name a few. Once the trademark is generic, the mark becomes invalid and enters the public domain. The owner then loses the exclusive right to use it.
Some companies (e.g. Apple, Microsoft, Disney, Caterpillar, Wham-O, Games Workshop) are vigilant at policing the improper use of their trademarks, whether the culprits are consumers, competitors, or the media. Xerox often runs advertisements reminding people to use Xerox to photocopy a document, not Xerox to xerox a document. The Coca-Cola Company sends cease-and-desist letters to stop the generic use of Coke for a cola-type soda. But many companies are lax in their policing policies, which is why many trademarks are in danger of genericide – like AstroTurf, Band-Aid, ChapStick, Bubble Wrap, Frisbee, Kleenex, Sharpie, Velcro.
To Genericize or Not?
For me, using a trademark generically in a sci-fi novel would not be as worrisome as being subject to a trademark infringement or trademark disparagement lawsuit. To avoid these types of lawsuits, see my earlier Sidebar Saturdays post. While companies hate genericization of their marks, most would be more likely to sue because of defamatory or infringing uses, like Burger King controlling humans through drugs in their burgers, or a deadly viral outbreak at Disneyland, or an alcoholic pilot constantly drunk on Budweiser beer.
To see how a few established authors have dealt with generic trademarks, I searched for random trademarks used in a few of my science fiction novels. Snow Crash (Neal Stephenson) used formica in a generic, descriptive sense but Frisbee as a trademark for the flying disc sold by Wham-O. Infected (Scott Sigler), however, uses Taser, Macintosh, Google as trademarks for the products. Infinite Jest (David Foster Wallace), where companies pay to subsidize the year, uses trademarks like Glad and Whopper as “the Year of Glad” or “the Year of the Whopper.”
Personally, I would be more inclined to not use a mark generically if a substitute existed. Why take on unnecessary risk if the generic use of the mark is not germane to the novel. That said, if a few trademarks used generically slip through the editing process, I wouldn’t start looking for process servers around every corner. The risks are relatively low a company would send a cease-and-desist letter or sue an author under those circumstances unless you are a J.K. Rowling-type author who would garner higher scrutiny from a corporation like Coca-Cola keen on monitoring generic usage of their trademarks.
Photo Credit: Giuseppe Milo (www.pixael.com) via Visual Hunt / CC BY-NC