We recently refined the language that is at the header of the “Dialogue References” section of our script clearance reports. For a novice especially it’s a confusing section of a clearance report; what are you supposed to do about those comments? Here’s our new introduction to that section, language we hope will offer a bit more explanation:
This section includes items that will be heard in dialogue. We will note references to brand names. Free speech laws allow you to make those references but internal considerations might dictate that you make them generic; we will not say “clear” or “not clear.” Once we note them, you decide if you want to mention a brand name product or not. Every project has a different policy on using brand names in dialogue. On the other hand, if we can tell that your intention was for the product name to be fictional, we check to see if it is or not. We assess your intention and proceed with either “reference to the brand name xxx” or “we’ve checked and we find xxx.” References to actual products, businesses, etc. may need consideration given contractual obligations. You might need to change them if you have a product placement agreement with a competitor. Derogatory references in dialogue may merit attention. We will flag these and production should consult with counsel on them.
Here’s one of the reasons you might not want to use the names of registered trademarks in your script. I recall a long-running advertising campaign in The Hollywood Reporter some years ago. I believe that the ad’s header was: “When you use ‘Xerox’ the way you use ‘aspirin’ it gives us a headache.” When reading further on the topic for this article, I notice that the campaign continued with this: “If you use ‘Xerox’ the way you use ‘zipper,’ our trademark could be left wide open.” With these advertisements, the Xerox Corporation intended to notify the film and television community that they would be doing what is known as “policing their mark.” If trademark owners discover people using their registered trademarks as generic language, they need to send a letter asking that the practice stop. Trademark owners have a responsibility to send these letters, otherwise the brand name loses its trademark status and becomes generic language. The power of the trademark registration is thus lost. This has happened to many trademarks over the years in different countries, the previously-mentioned zipper and aspirin serving as two marquee examples.
First published December, 2019