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Copyright Laws Regarding Product References

Guidelines for using product names in publications

Q: I've been interested in starting a magazine to do reviews of current technology products, such as games, entertainment, movies and more. Would it be necessary for me to pay royalties to companies for using their brand and corporate names, and showing pictures of their games and movies?

A: You don't have to pay any royalties whatsoever to any company to discuss its products, refer to its products by their brand names (trademarks) or use its corporate (trade) name. For example, if you were to review a bar of Ivory soap made by Procter and Gamble, you'd be entitled to refer to the trademark Ivory freely and also use their trade or company name (Procter and Gamble) freely.

You should use a company's trademark properly as an adjective with a referent or generic noun. ("I found that Ivory [trademark] soap [referent or generic noun] floats.") You should never use a trademark as a noun or verb. (Wrong: Ivory floats. Right: Ivory soap floats.)

It's also a good idea to indicate that the trademark belongs to the company if it's not apparent from the context. For example, "Ivory is a trademark of Procter and Gamble Co."

You can't use the company's photos or artwork without permission. For example, if you see a good photo of the product you're reviewing in one of the company's ads, you must get the company's permission before you can use it; otherwise you'd be infringing on its copyright rights. You may take your own pictures of the goods and use these freely, however. Similarly, if you see some good verbiage in an ad, you aren't allowed to use it without permission. Again, such an unauthorized use would be copyright infringement. There is one exception to the latter: If you use just a brief excerpt from the company's advertising, this is OK under the doctrine of "fair use." For example, if one of the company's ads includes a paragraph discussing the product and you want to quote a phrase or two, it's OK to do so without infringing on the company's copyright rights.

Lastly, if you evaluate a product and find it wanting, you may state this, provided you do so honestly and fairly and not maliciously. If you get a hard drive and, without testing it, publish a review that states the drive works poorly, you could be liable to the company for malicious product disparagement. However, if you make a fair test and examination of the drive and find it wanting and say in your review that it's cheaply made with weak plastic parts and loses data (and this is true), then your negative statements are fair and privileged and you'd have no liability.

Nevertheless, be careful and be as factual as possible since companies sometimes tend to be litigious, even if a lawsuit isn't justified. Consumer Reports has been the defendant in many such lawsuits, even when it acted in good faith. And even if you win such a suit, the legal fees can be considerable.

David Pressman, a practicing intellectual property attorney, is author of the bestselling bookPatent It Yourselfand the interactive software program Patent It Yourself, both published by Nolo Press. Formerly an electronic engineer, David has more than 30 years' experience in the patent profession-as a patent examiner, a columnist for EDN Magazine and a patent law instructor at San Francisco State University. Patent It Yourself can be obtained in bookstores (brick-and-mortar and online), from the publisher (www.nolo.com) and through David's Web site (www.PatentItYourself.com).


The opinions expressed in this column are those of the author, not of Entrepreneur.com. All answers are intended to be general in nature, without regard to specific geographical areas or circumstances, and should only be relied upon after consulting an appropriate expert, such as an attorney or accountant.

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