Many people think that you can’t use any trademarked products in your film, because you might get sued by the company. This is why you sometimes see made-up or generic products or product names in film.
However, nominative use – showing or referencing the product in name only – should be valid within the bounds of the Lanham Act or Trademark Law of 1946.
Attorney Lisa A. Callif in an interview with No Film School says that correct nominative use assumes that “(i) the place or product shot is portrayed in the manner it is commonly portrayed; and (ii) the audience is not led to believe that the brand or store is sponsoring or associated with your film”.
The primary purposes of trademark law are to prevent consumer confusion and to prevent unfair competition. The standard for preventing consumer confusion is that any reasonable consumer would not be confused by the use of the trademark in your film. Also, besides the issue of trademark infringement, there is an issue of trademark dilution, whereby the trademark of a known brand may be “tarnished” or “blurred” by an association made by another person or organization. Tarnishment would be when the someone makes an association with the brand that implies low quality or is objectionable or offensive. Blurring would be if a trademark (or a symbol that was intentionally made to be similar to the trademark) was used in a way that made it difficult to determine if the creators were trying to make a statement about endorsement by, affiliation with, or disparagement towards the known mark. Please see Attorney Callif’s article “Using Trademarks in Film and TV” for a further discussion of trademark infringement and dilution.
So, generally, you have to be careful to avoid several implications in your use of known trademarks:
- Make sure that you are not trying to capitalize on the commercial appeal of the brand to make money.
- Make sure that your use does not imply that the company is sponsoring or associated with your film.
- Make sure that your use does not unfairly tarnish or disparage the reputation of the product or service by the associations made in your film.
For a very nuanced discussion of each of the possible ways that trademark could be infringed or diluted, see “How To Use Brands And Products In Film” from attorney Donovan Rodriques.
Sometimes people say “fair use” with regards to trademark, but they probably mean “nominative use” or “use that does not violate the Lanham act”. Technically, the term “fair use” only applies to copyright.
If you have any question about whether your use is beyond nominal, you should talk to an intellectual property or entertainment lawyer. Or, you could just take the safest route and blur or remove logos from your film. Or have fun making up some products and logos on your own.
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