New Trademark Bill Could Affect Writers and Journalists
Posted on February 17, 2006
In your new novel, your character drinks a Coke, has some Doritos and then uses his Xerox machine to copy some documents. Sounds fine, right? Authors mention trademarked goods all the time. But according the the Authors Guild, that may be a thing of the past if a new bill is passed by Congress. The bill would drop express protection for "noncommercial use" of a trademark and would weaken the protections for those who use trademarks in news commentary. The bill has already passed the House and went to the Senate Judiciary Committee yesterday. Here's what the Authors Guild said in an email to its members:
These changes in the law appear to be largely collateral damage in a bill intended to address the "dilution" provisions of trademark law. The bill, known as H.R. 683, the Trademark Dilution Revision Act, is otherwise unobjectionable from the perspective of an authors' group.You can read more about the Authors Guild's position and see what action they are asking writers to take here.*****
Trademarks, including business names, brands, and slogans, are unavoidable and proliferating in daily life. Writers of fiction and nonfiction inevitably incorporate trademarks into their work, sometimes to comment on the particular business using the trademark, but frequently the use is merely incidental to the nonfiction or fiction writer's story ("Tom went to a McDonald's, had a Coke, and waited for the Harley to arrive.").
Just as fair use provisions of copyright law permit writers to make certain uses of copyrighted works in their own works, so do fair use and related provisions of trademark law permit writers to use trademarks in their works. One of the important protections for writers using others' trademarks is section 43(c)(4)(B) of the Lanham Act, which excludes noncommercial and news reporting uses from several types of liability under trademark law. The new law would weaken these protections, exposing writers to greater potential liability for their use of trademarks.
This would needlessly chill expression. The legitimate changes to the dilution provisions of trademark law can be made without changing the exclusions from liability contained in the current law.