Starbucks is a double-edged sword...

2 years ago | Tartra (Member)

I love the concept of Starbucks and how they fit into today's general Western society. In the most absolute ideal world, I'd be free to write a dozen best-sellers where my characters hang out there and never once leave. It's got that perfectly clear reputation of snobbery and overpriced products that's worth fighting for to keep, but there's the other side of things.

I'm asking around now about whether I can legally use Starbucks as I am (and will keep doing) while also monetizing my serial. I'm going to go down the "Hey! Donate! Bonus chapter!" route eventually, but my fear is that I'm really only 'safe' until I start pulling revenue. Then I've started profiting on a trademark infringement, which - no matter how much love Starbucks has/will be given - is not going to soothe their feelings.

For anyone who's had to work around trademarks before, what's the line? Am I safe until I start soliciting tips? What about general donations rather than tying it to a bonus chapter? Or if I tie it to chapters that don't mention Starbucks at all? If I publish TOKoR as an eBook later, is that when I get my ass handed to me, or can I scream 'fair use'?

Argh. I can't tell if I' m procrastinating or trying to address a legitimate issue. Both?

The Other Kind of Roommate — Like Fight Club meets X-Men meets The Matrix meets Superbad.

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Responses

  1. Dennis N. Santana (Member)

    Posted 2 years ago

    I'm not a lawyer but from what I understand and have been told by a few legal pros, you absolutely cannot use trademarked names and brands on your title, ad copy, front and back page matter, and so on, visible stuff like that, without permission, because that can be construed as endorsement of your work. Such things would be taken very seriously and very immediately even if you're a nobody.

    A passing mention in the inside matter of the book is fine -- for example you can have a character drive a chevy or whatever and call it a chevy in passing, no harm no foul. Genericized brands should be called by generic terms -- tissue every time, not Kleenex every time.

    However if you're namedropping a company or product repeatedly or using it as a setting and they ever *notice you doing it* then they will pretty quickly care about what kind of image of them you're presenting. So for example if you're writing a story where significant amount of the atmosphere is the oppressive nature of working at AT&T or whatever, AT&T will probably not like that very much and will come calling.

    If you're a big-name author with a publishing house that has a legal department you can talk to them and they can probably hash something out before publication or during the writing itself and tell you clearly whether AT&T is cool with you depicting them as the hunger games of telecommunications employment. This is how say, Dan Brown, gets to namedrop things if he feels like it. He gets legal on it, and his people talk with their people.

    You're not Dan Brown (thank god!) so you've got to be very careful about this.

    It's best to come up with a fictitious company that resembles whatever you wanted to talk about. I'd wager the brand name drop isn't really as important. You can spend an extra bit of time describing that it's a snobby bean juice venue. I haven't read your story so I don't know how really essential it is to be able to use Starbucks and I don't know how you depict Starbucks. The thing with this also is that they have to enforce it. Starbucks might not care or ever find out that you're doing this, but if they do find out and do care they have instruments to deploy against you.

    It's not "fair use" if you're disparaging Starbucks at every turn, for example.

    This applies to private companies. I'm pretty sure you can mention arms of the Federal government, for example, without any problem. How else can we make all these techno-thrillers?

    That's just what I've been told though, if we have a legal professional in the house who is cool giving some free consultation that'd help.

  2. Tartra (Member)

    Posted 2 years ago

    I don't think anyone could read my story and think I'm doing anything less than hiding in Starbucks' bushes to collect its trash and add it to my shrine of brand name coffee packages and used stir sticks.

    Starbucks is getting a golden treatment, I mean. They're certainly not being disparaged.

    As far as use of their image and the potential of perceived endorsement, I've been very careful to avoid visually representing it, but I just realized it's in my little blurb. I'll have to change that.

    One other issue I heard involved generification, which I'm again avoiding because Starbucks is being presented as uniquely them, with absolutely no room to confuse it or relate it other coffeehouses.

    See, the thing is, webcomics like Least I Can Do bring in Red Bull and Cadbury Creme Eggs with no issue. They're fairly important and get VIP treatment, as well as story arcs about how much so-and-so loves them. I'm wondering how they pull it off.

    The Other Kind of Roommate — Like Fight Club meets X-Men meets The Matrix meets Superbad.
  3. Dennis N. Santana (Member)

    Posted 2 years ago

    They likely pull it off because Red Bull and Cadbury don't know or don't care, probably, and if they do know, they're fine with it because the publicity, such as it is, is good (there could be some weird endorsement deal going on but I don't know these comics you're mentioning so I don't know). Web original and indie things are generally beneath the notice of most big companies. Pepsi is for example too busy getting Pepsi products into movies and TV to care whether webcomic characters are drinking Pepsi. But they *could* decide to care one day, if they wanted to, it's in their rights, and that's generally what you want to take precautions against. You don't want that eye of sauron hovering over you.

    That being said, generally the precaution is if you want to slam the product or company. If you love it, then the danger is way less than if you hate it.

    If it's so central to your work and you ever want to commercialize it though, then whether you love it or hate it, a bit of a lawyer's time might be a good investment at that point. I personally *love* making up fake, horrible brands. I used to be in journalism school and I took some marketing classes and I have a huge list somewhere of terrible, terrible replacement names for so many companies.

  4. Tartra (Member)

    Posted 2 years ago

    Well, I've literally just sent one of the LICD creators an email. Hopefully he gets back to me.

    I know David Throne got hit by Penguin Publishing House for using their logo on his book. With them, it was being used in a negative way, and it wasn't supporting the same market. It was capitalizing on the reputation Penguin had already built, so in came the C&D. Someone also just told me Starbucks shut down a dog groomers shop called Starbarks, but again, they were capitalizing on the name power to serve an unrelated market. It was like a parody that turned against the company enough to want things shut down.

    With me, and I don't know if I'm splitting hairs, but since I'm keeping the references in the same market and using it to promote Starbucks as an accept-no-substitutes provider, I'm banking on a bit of blind leeway. They could turn on me, sure, but as long as the story itself is - uh... 'tasteful', the package through which I'm promoting them shouldn't turn too many heads.

    I suppose... I mean, I'm wondering if I could just ask. But I'm thinking it's way too early to ask for that. Argh - bad idea. Bad.

    The Other Kind of Roommate — Like Fight Club meets X-Men meets The Matrix meets Superbad.
  5. ubersoft (Member)

    Posted 2 years ago

    If you're referring to a place that exists in the real world, and your story takes place in the real world, I'm pretty sure you do have some legal traction when it comes to using the name. This doesn't mean they WON'T send you a C&D, or sue, but there is some precedent on your side. That said, if the story FOCUSES on the place, your legal traction diminishes rapidly. If a character works at a large internet search engine company, for example, it's probably better to name the company Lookit and move on.

    Unless you're writing parody. For example, in my webcomic I've established that Google is secretly run by an extradimensional demon who's speech interacts poorly with the laws of physics in our reality, and so anything it says sounds to us like "Don't be evil" (which is where all the confusion came from) -- I'm commenting (negatively) on Google but I'm protected because it's actual discourse about Google. That doesn't mean they won't sue me some day, but if they do and I can afford to pay my lawyers I'll eventually win.

    Curveball (Updating)
    A Rake by Starlight (Updating)
  6. Tartra (Member)

    Posted 2 years ago

    So with that, I can at least outline three big points:

    1) Generification: is your use of the Thing (product/service/company) diluting the brand name? There is nothing as serious in a company's eyes as losing a trademark to generic use. They will absolutely clamp down on this if they feel your work is cheapening their uniqueness. Like the yo-yo lost its special name to everyday terminology, Jell-O (for example) will fight tooth and nail - even against the little guy; this is how much this means to them - to make sure no one turns their brand into an interchangeable name for the overall product.

    Jell-O is Jell-O. Everything else is a jelly dessert or gelatinous dessert or whatever. Kleenex is Kleenex. Everything else is a tissue. May the gods that guard your wallet help you if you call any regular bandage a Band-Aid.

    b) Negative Portrayal: are you dragging their name through the mud, or targeting the name in anything less than a neutral light? It's fine to say someone looks like Harry Potter. It's not okay to say someone looks like a total asshole Paris Hilton I hate that bitch I hope she dies. It's okay to say the car is a Chevy. It's not okay to have paragraphs on why you should never buy one (and here come the fuzzy parody laws. The thing is, those can vary by case, and even if you're in the right, that doesn't mean the company can't fight you on it anyway).

    Third) Endorsement risk: does it look like you're being sponsored by a company that isn't sponsoring you? From working their logo into cover art from mentioning their trademark in your blurb (which I did and have since painlessly changed; the sooner the better, so you're less attached), you can't make it seem like you've got active permission to feature their intellectual property in your work when you don't. A casual name drop is fine. The Penguin Publishing House penguin logo modified to flip you off isn't (Sorry, David Thorne. I still love you).

    The Other Kind of Roommate — Like Fight Club meets X-Men meets The Matrix meets Superbad.
  7. MaddiroseX (Member)

    Posted 2 years ago

    This is really funny because I just posted a reply to a question almost exactly like this, except they were talking about a real life office supply store, and so as an example in my reply I used Starbucks :D sooo I'll just copy what I said verbatem:

    I'd just make up a company, using the company you're thinking of as a model. If you want a character to be a barista at Starbucks, think about why it has to be Starbucks. Is it because the character needs to be worn down by a mega-corporation? Is it because the character needs to interact with a certain type of customer? Is it because the music playing over the speakers has to annoy him every day?
    Well now he works at "Brew Moon" a mega-corporation with a certain type of customer with annoying music playing softly in the background.
    Honestly, this will also help you become a better writer, because it forces you to pick apart what you're saying and why. It forces you not to use the shortcut of "here's this thing you all know, with the connotations that come from that", and instead say "here are the connotations I'd like you to derive."
    Even if you didn't legally have to come up with a new company, I'd recommend doing it anyway.

    Spurs & Seraphim (ongoing) | Beta Key (complete) | Twisted Cogs (complete) | Orbital Academy (complete)
  8. mathtans (Member)

    Posted 2 years ago

    The one thing you also need to (potentially) take into account is that "negative" is often up to interpretation. Saying "You're wearing a nice dress today!" could be interpreted by the person as 'why only nice? why didn't you like what I had on yesterday? is this sexual harassment?'. If someone at Starbucks sees your serial as associating them with a serial killer who swears a lot and has multiple personality disorder... maybe that's not the clientele they're hoping for. (And I know that's not REALLY the character, but business people see things in strange ways. Particularly if they think they can make a quick buck. Or I'm just cynical.)

    On the bright side, your branding seems to be working, as I knew this was a Tartra question just from the subject line. That being said, if your characters were always talking "Starkiller", I likely would have made that same association. Along with Star Wars. Because my head's a bit of a mess.

    Writing a Time Travel serial: http://mathtans.wordpress.com
    Writer of the personification of math serial: http://www.mathtans.ca
  9. Tartra (Member)

    Posted 2 years ago

    I am riding on a very serious hang-up about changing things from Starbucks, but considering how much of an issue it is for me these days, it has to come to a head. Obviously I don't trust Starbucks not to turn around and yell at me one day, even though I can't imagine what they would find distasteful about my serial other than the obsence amounts of language, violence, shallow motivations of each character, snide interaction among all the characters, and the soon to be actively increased death count in the next update. I mean, would you endorse me? I'd endorse me.

    I guess I should start ripping this Band-Aid(R) off. Either way, I'll have fun describing everything about the coffeehouse my characters may or may not go to, but - eeuuuuurrrgh. That onomatopoeia should cover how I feer about having to change this.

    ... Is it wrong to pull a Nathan Fielder and call it 'Dumb Starbucks'?

    The Other Kind of Roommate — Like Fight Club meets X-Men meets The Matrix meets Superbad.
  10. ubersoft (Member)

    Posted 2 years ago

    Call it "Novacash."

    Curveball (Updating)
    A Rake by Starlight (Updating)
  11. Tartra (Member)

    Posted 2 years ago

    Wow. That does sound pretty good.

    Huh. I'm thinking about it now...

    The Other Kind of Roommate — Like Fight Club meets X-Men meets The Matrix meets Superbad.
  12. Tartra (Member)

    Posted 2 years ago

    Well, apparently Novacash sounds like a bank (and is taken), but I found out that Starbucks was once originally going to be called Pequod after the whaling ship in Moby Dick, but was named after the first mate instead. Who the hell knew? So I'm going with Pequods, whose logo shall be a seductive and teal merman.

    The Other Kind of Roommate — Like Fight Club meets X-Men meets The Matrix meets Superbad.
  13. Jim Zoetewey (Moderator)

    Posted 2 years ago

    I was going to suggest Ishmael's due to the Moby Dick connection, but Peaquod's works too.

  14. M.J.Kane (Member)

    Posted 2 years ago

    Hmm I'm curious about this too. A few of you say it's okay to mention things in passing, but what about mentioning things very negatively in passing?

    In my serial, one character in particular is very anti-establishment and anti-consumerism. She's kind of an extremist in her views and there are a few lines where she refers to people as rushing off to buy their Starbucks coffee and celebrity endorsed fragrances in a very negative context. Are things like these problems? (Just for the record I love Starbucks)

    Also another character mentions how he can't even get hired by McDonalds, referring to how low he has sunk.

    The Night (An Apocalyptic Horror) - https://sundayserials.wordpress.com

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