Trademark infringements

[geoff-h -at- MTL -dot- FERIC -dot- CA]

 On the issue of trademarks, I had written that <<So using a
 product name as a noun isn't strictly legal, but it's
 accepted practice.>>

 Jane Bergen gently took me to task for imprecision. <<Beg
 to differ, Geoff. It's not standard practice at all. It's
 wrong to say, "Hand me a Kleenex, I need to wipe my Oreo
 off my Xeroxed copy.">>

 <caveat> I'm not a lawyer and don't play one on TV. That
 being said:

 I should have been more precise. It's certainly not
 standard practice for the _owners_ of the trademarks, and
 indeed, to retain trademarks, they must not do so. It _is_
 standard practice in fiction, and in most nonfiction works
 by people who don't own the trademarks. Again, consult any
 computer magazine and you'll see what I mean. In fact, the
 standard practice seems to be (e.g., my MS Word manual) to
 state on the copyright page that "A, B and C are the
 trademarks of X, Y and Z" and to ignore the issue again
 throughout the rest of the book. And since nobody except a
 writer or editor ever reads the copyright page...

 <<Pick up any Writer's Digest magazine and you can see ads
 from companies and at least one organization asking you to
 refrain from using product names as nouns.>>

 As noted by others, _they're_ required to do this to
 protect their trademarks. _We're_ not required to do
 anything of the sort, other than to acknowledge that the
 word is someone else's property. And, if someone is
 persistent enough to send us a lawyer's letter, then it's
 up to us to determine whether or not to comply. But don't
 forget, unless we're trying to steal the trademark, the
 lawyer's letter is generally to document that they're
 actively trying to protect their trademark, not to announce
 a lawsuit.

 A clarification: I'm _not_ saying we should do something
 illegal simply because we can. I _am_ saying that using
 someone else's trademark as a noun is _not_ illegal unless
 we're trying to steal the name or dilute the trademark.

 <<If we, as writers, do not protect the integrity of brand
 names, who will?>>

 While I agree with the sentiment, it's annoying to me, as a
 reader, to encounter "Velcro-brand fastener" when I've
 never heard this phrase in daily speech; everyone I know
 simply says "Velcro". It's also unrealistic to use brand
 names solely as adjectives, since we're supposed to use
 language that's familiar to our readers. Jane used the
 examples of Kleenex, Oreo, and Xerox, but nonetheless,
 these are used incorrectly everywhere and everywhen.
 Although each company no doubt would prefer it to be
 otherwise, they've long since lost the battle to keep these
 trademarks out of the public domain.

 A second big clarification: There's a very big difference
 between using the words generically and using the word in
 the context of your own product. I could ask someone to
 hand me a kleenex or produce my own brand of facial tissue,
 but I couldn't call my brand "Kleenex tissue"; I can xerox
 a few photocopies, but couldn't call my own brand of
 photocopier a "xerox machine"; and I could make chocolatey
 cookies with white goo in the middle, but couldn't call
 them "oreos".

 If I appear to be saying that it's OK to perpetuate a wrong
 practice simply because everyone else does it, that's not
 my point. We must certainly respect the legal niceties, but
 also respect the fact that our readers aren't lawyers and
 will refuse to read text written on behalf of lawyers.
 That's the real issue here.

 --Geoff Hart     @8^{)}     geoff-h -at- mtl -dot- feric -dot- ca
 Disclaimer: Speaking for myself, not FERIC.

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