Mindy Klasky is one smart cookie. So you can imagine my delight when she wanted to tackle one of the harder subjects that authors face when writing. . . trademarks. We have the joy of making stuff up when we write our stories but what happens when our fiction crosses over with the real world?
They say, “Write what you know.” And what I know is law – I spent seven years litigating trademarks and copyrights in a large law firm in Washington, DC. I don’t use that experience directly in my novels– I haven’t written (yet!) about lawyers on quests for love. But I use my trademark background in every contemporary novel I write. In fact, my Diamond Brides Series (about players on the (imaginary) Raleigh Rockets baseball team and the women who love them) required some of my most diligent trademark work yet.
When I began to develop the series, I ran a trademark search to make sure that “Rockets” was available for my fictional baseball team. Anyone with Internet access can search the availability of a trademark:
- Go to http://tmsearch.uspto.gov 
- Select a Search Option. (For virtually everyone, this will be “Basic Word Mark Search” which allows a user to determine the owner of a word trademark (e.g., “McDonalds”; the other options allow users to search for designs (e.g., the golden arches logo). Designs add a whole other level of complication that will usually be beyond a novelist’s concern.)
- Type in a Search Term and click Submit Query.
- Review the results. Keep in mind that just because a trademark registration is listed as “Dead”, it may still be in use. “Dead” merely means that the owners didn’t file timely paperwork with the government.
Now, I spent years honing my skills, determining whether one trademark was confusingly similar to another. “Similar” for trademark purposes focuses on the “sight, sound, and meaning” of a trademark.
For example, I couldn’t use “Rockets” for my imaginary baseball team if there was already a “Wrockets” or “Pockets” team out there, because the mark would be similar in visual and aural appearance (“sight” and “sound”). Nor could I use “Rockets” if there was already a “Spaceships” team, due to the similarity in meaning. (Spoiler Alert: I ultimately concluded that “Rockets” was available for use.)
(As an aside: I regularly run trademark searches when I’m trying to determine whether a particular mark is still registered. If it is, then I’ll capitalize it in my novel. My characters grab a Kleenex after reading a tear-jerking Xerox copy of a newspaper article; the trashcan in their offices will be emptied into Dumpsters, which keeps the Realtors happy when they show the office to prospective buyers. But they might take an aspirin if they get a headache after spending all day on the escalator without even a sip from a thermos, especially if their zipper got stuck, or they slipped on linoleum.)
I still had trademark tasks on my plate, even after I chose my team name. Major League Baseball earns big money every year licensing team logos. While I’m determined to make the Diamond Brides Series a success, I know I’ll never be able to afford Major League licensing costs. Therefore, I have to beware infringing Major League trademarks. I can’t send my Raleigh Rockets to play the New York Yankees, or the Los Angeles Dodgers, or any other real team. Nevertheless, I can send them to “New York”, or to “LA” – a city name can’t be trademarked; only the team name can be protected.
Even with the restrictions on trademarked names, I can make factual statements about an existing team. Thus, if I want to refer to Babe Ruth, I can mention that the Red Sox sold him to the Yankees. I can say that the Colorado Rockies have never won the World Series. Those are facts, and I’m not connoting that the Red Sox, Yankees, or Rockies have sponsored my Diamond Brides Series in any way or that the teams are somehow the source of my spicy romances.
I just have to make sure my factual statements are, in fact, true. If I want to disparage a team, saying that their pitchers always cheat by putting pine tar on their hands and their runners regularly come in hard with their spikes up with the intent of injuring infield players, I’d better use an imaginary team, with imaginary players, so I can’t be accused of tarnishing the trademark of a real team.
If I’ve done my job right, readers will be so engrossed in my characters that they’ll never think about the picky details of trademark law. Baseball (and its associated trademarks) are a backdrop to my stories – each novel is about a man and a woman working through conflicts so they can be the best partners possible for each other.
What books have you read where trademarks leaped out at you? Or conversely, what books have you read where the author has gone through clever machinations to avoid having a trademark leap out at you?
Mindy posed some great questions . . . hit is with your thoughts and your own questions!
Join us on Wednesday for the fabulous Laurie Schnebly Campbell!
Reigning beauty queen Samantha Winger is launching her pet project, a music program for kids. All she has to do is follow the pageant’s rules—no smoking, drinking, or “cavorting” in public.
That’s fine, until D.J. Thomas—God’s gift to baseball—throws her a wild pitch. He slams her in an interview, and the video goes viral. Sam’s no shrinking violet. She parlays D.J.’s apology into a national T.V. appearance—and a very unexpected, very public kiss.
Soon, paparazzi catch the couple in a steamy make-out session, and Sam’s music program is on the block. The blazing hot relationship is threatened even more when D.J.’s son begs to trade in Little League for music class.
Can Sam and D.J. sizzle past the sour notes and find their perfect pitch?
Mindy Klasky learned to read when her parents shoved a book in her hands and told her she could travel anywhere through stories. As a writer, Mindy has traveled through various genres, including hot contemporary romance. In her spare time, Mindy knits, quilts, and tries to tame her to-be-read shelf.