Legal Question in Product Liability in North Carolina

Use of Trademarked Product in Humor Article

I wrote a humor article, based on a true story, about the comic side effects that occurred when I fed my cat (on doctor's advice)a well-known over the counter brand of medicine. My article was published and I want to use it in a book. The corporation that owns said product has said I cannot use the product name in my story, due to potential libel and lawsuits. I make a comment in the story that ''no one likes grape flavor'' that they found insulting to their product. Also, since this product is not licensed for animals, they contend it's ''off-label'' use and have the right not to have their product promoted that way.

My story is based on what actually happened to my cat. Am I allowed to use the story and they're just blowing hot air, or am I setting myself up for a libel and defamation claim if I use the product name?


Asked on 5/04/05, 3:44 pm

1 Answer from Attorneys

John Kirby Law Offices of John M. Kirby

Re: Use of Trademarked Product in Humor Article

You may want to consult a lawyer that specializes in copyright, trademark, and intellectual property generally. If you have a publisher, then it may be able to provide you with some guidance on this. Based on my understanding of this area of law, there is no reason you could not refer to the product. It does not appear that you are making a false (and defamatory) statement about the product; hence there should be no claim for libel. Even the grape comment does not seem defamatory. It seems that in literature there is often reference to specific brands of products. There are, for example, songs about Cadillacs and Mercedez Benzes; I doubt those artists needed their permission to use those names. And it seems that you are not trying to capitalize on the product name (e.g. purporting to have an affiliation with the product). This sounds much more like hot air than a valid threat. You may also want to write to the company and ask it for a specific statutory provision which prohibits your use of its product's name, or the general area of law applicable. This puts the ball in their court. If you wanted to be hyper-cautious, you could consider including some disclaimer in your story, perhaps in a footnote, or at the end; disclaiming any affiliation with the product, and denying any defamatory intent.

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Answered on 5/04/05, 9:38 pm


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