A Curious Trademark Kerfuffle in the Cocky World of Romance

Parts of Twitter appear to be in flames over a romance author who has not just taken out a trademark on the word ‘cocky’ but is also writing to other authors and asking them (telling them?) to remove the word from their books.

Author Faleena Hopkins has a series of books centred around some “Cocker Brothers” (I assume that’s their surname) and each of the books has the word “Cocky” in their title (e.g. ‘Cocky Cowboy’). Fair enough as far as that goes – lots of ways to prove love is real. However, the term ‘Cocky’ was then registered as a trademark. Trademarks of mundane words or things (e.g. purple, specifically the Pantone 2685C purple) always cause some angst for obvious reasons – it feels like an attempt to enclose common land.

This move was further exacerbated by the author (or people representing her? Not sure.) apparently requesting other authors to remove the word ‘cocky’ from their titles. There is some dispute if this included books that were written before the trademark.

The need to trademark common words is often presented as a dilemma: the need to reasonably protect intellectual property and brand recognition versus the right to use words how we like. I don’t think there is actually much a dilemma here – if somebody wants a protectable trademark then they need to make it distinctive in the first place. If you are using a common word and want that to be how you are perceived as being distinctive then obviously you’ve made an error from the start. You will get genuine confusion and people unwittingly using ‘your’ term in ways you don’t want and you’ll have no neat way of distinguishing that from actual scammers.

The author in question now feels they are being bullied on Twitter and that’s unfortunate but it’s also unfortunate that other authors feel legally threatened for using the word ‘cocky’. Regardless of the legal right to trademark the word, I’d have thought the inevitable negative reaction would be a reason for not doing this.

(Update: a better overview is here: http://legalinspiration.com/?p=503 )

[update: Nate Hoffelder has a quote filled update https://the-digital-reader.com/2018/05/05/cockygate-faleena-hopkins-has-registered-a-trademark-on-cocky-and-is-using-it-to-threaten-other-romance-authors/amp/?__twitter_impression=true ]

41 thoughts on “A Curious Trademark Kerfuffle in the Cocky World of Romance

  1. Huh. So she’s trademarked a word? That’s legal?
    That’s really bizarre. What’s to stop someone to trademark a word like, I don’t know, “is”? And the charging the entire civilized word for using it?

    Liked by 3 people

    1. If the word is distinctive enough you can trademark it to prevent others using it for similar products. Let’s say you had a perfume brand called ‘is’ you might get a trademark for perfumes but it wouldn’t stop anybody using ‘is’ more generally.

      Liked by 2 people

  2. You can’t copy-right book titles and as far as I’m aware you can’t legally trademark them either. If she’s attempting it, she’ll have to have enough money to defend it in court and that seems unlikely. It’s why the SciFi channel changed its name to SyFy. SciFi was a common term used in entertainment and so they could not successfully trademark it. By changing the spelling, they made a new word/term that sounded the same but was distinct to them, so they could trademark that, which is something companies commonly do. Putting the word cocky in book titles doesn’t do that. She would have to prove in court that customers would be sufficiently confused by other titles with cocky in them to think they were her series — that her series is sufficiently well known enough to cause that confusion, so that those other titles infringed upon her trademark. That would be hard, especially because intellectual property law is set up specifically to keep book titles from being copyrighted and locked up, and that’s for the whole title, not just one word in a title.

    Liked by 5 people

      1. I suspect that the patent concept which applies to film titles differs from that applying to books.

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    1. It also depends on national laws. In Germany, you can register a book title for “title protection”, which is expensive and therefore pretty much unaffordable for indie authors. It also makes titling new books difficult, because many titles have already been used. I hope this will be struck down soon, probably when someone goes to court over a book title.

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  3. camestrosfelapton: The author in question now feels they are being bullied on Twitter

    Well, really, what were they expecting? That everyone to whom they sent a cease-and-desist saying “stop using this common English word in your book titles, because it’s mine now” would just say “oh, okay, sure, no problem”? 🙄

    Liked by 5 people

      1. Lurkertype: Fighting back against bullies isn’t bullying. And being taken to task for your dumbass idea and bogus legal threats isn’t bullying either.

        That’s something that I reallly resent: people who have been called out on their bad behavior, proclaiming themselves a victim of “bullying”. It’s cheapened the concept and desensitized people in general to the concept of bullying, such that when bullying does actually happen, a lot of people just roll their eyes and mumble about “special snowflakes”, because they’re tired of all the people who’ve been crying “wolf” and so can’t be bothered to take the time to identify when something is, or is not, bullying.

        “People shouldn’t bully me” is not equivalent to “People aren’t allowed to criticize me, regardless of how deserving of criticism my actions are”.

        Liked by 3 people

      2. It’s worth being a little aware of how we – is in the larger “we”, the public opinion – take people to task for their dumbassery, though. Being criticized for doing something stupid isn’t bullying, but having done something stupid is not an invitation to the whole world to start making jokes about you either.

        From what I’ve seen this author doesn’t have reason to complaint, but in general there is a tendency in social media that people who’ve said or done something stupid gets labeled fair game and then there’s no end to the criticism, namecalling and jokes targeted at this person. And that can easily cross the line into bullying – even if the victim’s original error was genuinely stupid, and even if individual contributions to the pile-on aren’t necessarily bad by themselves.

        This threads back in some ways to some Camestros said in an earlier post about how to respond to potentially defamatory comments: Everybody doesn’t have to react. Avoid being silent if that can be seen as assent to abusive behaviour, but also avoid piling on when it’s not necessary.

        Liked by 2 people

      3. There’s a difference between “doing something stupid” and legally threatening people and their livelihoods with nuisance lawsuits. This woman attacked people in hopes of her own benefit and she is being taken to task for attacking people.

        This woman sent cease and desist letters to authors threatening legal action instead of having her lawyers do it. Which means she personally went after these people and threatened them. This woman sent the letters to authors, who, unless they self-published, have little to no control over what book and series titles their publishers decide to do for books, and no control over the cover design including fonts. And if they published their work before her series, she cannot retroactively declare a trademark, if any trademark of books beyond media tie-in books will even hold up in court. So these authors have to spend time and money they don’t have talking to lawyers to deal with a woman who 1) has poor legal advice; 2) doesn’t even follow legal advice; 3) personally threatens authors, their livelihoods and their family’s well-being with nuisance lawsuits because she apparently has an ego the size of Texas.

        So they are fighting back. And other people are standing with them so that we don’t have more people coming after authors in this way in the future.

        Liked by 2 people

      4. What Kat said: legal threats/action necessitating her victims spend money on lawyers lest their livelihood be taken away is a far cry from “doing something stupid”. I mean, it is stupid the way she’s going about it, but also dangerous to others. Much different from saying something dumb and getting piled on for it.

        She deserves every bit of opprobrium she’s getting, short of violent threats which are never appropriate.

        Liked by 1 person

  4. I think that I’m going to copyright the phrase ‘patent troll’ and then send her all the Cease and Desist letters in the world.

    Liked by 4 people

  5. I read the nice legal man’s general notes on it from the link above, and this woman and her publisher really have no idea, seems like. There is no way they will be able to successfully sue people for trademark infringement on either mark and they’ll get counter-suits galore if they try. And RWA is taking this on for their members, so she’s going to find herself with few friends in a symbiotic market. She’ll likely lose these certificates she registered. What a bizarrely destructive and petty thing to do.

    Liked by 4 people

    1. Over in his sidebar Twitter thingy, I learned that he thinks it’s cool that he’s now being followed by lots of romance authors. Also that a hashtag for this is #byefaleena.

      Also, someone’s doing an anthology called
      THE COCKY COCKERS:
      1) Romance, any subgenre
      2) Must feature a cocker spaniel
      2) ~5k words
      3) Due 05/31/18

      The comments also suggest that she may have violated the copyright of the owner of the font she used.
      Also she seems to be a bit confused between trademark and copyright.

      I hope she enjoys her impending loss of support, income, and goodwill from her community. That income loss is going to be even more painful considering how much money she wasted on a crappy lawyer (see the letter she’s sending to “violators” in the comments) and an unenforceable trademark. But she can apparently enjoy her swoopy brushy font logo all she wants. In private.

      Liked by 3 people

      1. Given that Hopkins showed up in the comments on Hoffelder’s post and insisted that “she hadn’t threatened anyone” – even though his post includes one of the emails she sent to another writer, declaring that she will sue her and seize all her earnings if she doesn’t comply with Hopkins’ demands – any sympathy I might have had for Hopkins being subject to an internet pile-on has gone below zero.

        Liked by 2 people

      2. Considering he’s chimed in on it, I betcha Chuck Tingle writes a book with that in the title. Those are the major thrust (heh) of his books anyway.

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  6. Well, I don’t know if it’s better, but it’s definitely longer. 🙂 Thanks for the link!

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  7. Back in junior high I read two different Swedish books that had been given the same title in Norwegian – translating to something like “Rebellion of the Thralls” in English. Both books are part of series, and both series have other titles in the pattern “[something] of the Thralls”. The Norwegian editions I read had cover illustrations in a similar style.
    Which is a long way of saying I can see the point of trademarking book series so they’re less confusing. 🙂

    Liked by 1 person

  8. So it’s looking like this woman has committed several acts of fraud around trying to do these trademarks. Particularly, her series wasn’t called Cocky for most of its run. It was called The Cocker Brothers of Georgia series. She changed it only recently but in the trademark application, she lied and said that had always been the series’ brand name. So now there’s a counter-suit being filed to invalidate the trademark. It’s being undertaken by a retired IP lawyer and author; I’m a little unclear as to whether he’s working with RWA or not, but they are also at work. So this will help a lot of authors out who are being threatened by this woman.

    It would have been nice if Amazon and their division Audible hadn’t just kicked a bunch of authors out on “copyright violation” which was not the case on this woman’s uneducated screeching. But they don’t care enough to investigate the situation, even to notice that it’s actually a trademark situation. In the meantime, at least those authors are getting a lot of support, including from E.L. James.

    Liked by 2 people

    1. Sometimes I want a time machine just to try and warn people not to do appaling stuff like this so I don’t feel so embarresed for them when it all unravels so badly.

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      1. Given the doubling, tripling, and quadrupling down on display, what makes you think that anybody who thought this would be a good idea in the first place would listen to any advice otherwise?

        Liked by 2 people

    2. “The Cocky Series” isn’t mentioned anywhere on her covers, only “The Cocker Brothers” (of Atlanta, not Georgia). So I doubt she actually changed the series name. My guess is that it’s just another of her lies. I strongly suspect she doesn’t even have an attorney, but is bluffing her way through this in order to garner publicity for her upcoming film.

      Liked by 1 person

  9. People have apparently come up with all sorts of information now showing that she only changed the series name at the time she filed for the Trademark, and that she admitted in videos knowing about Tara Crescent’s Cocky Series when she filed.

    Another author has filed a USPTO challenge, which should provide the opportunity for all of the “prior art” documentation to be submitted. I think she is going to lose the Tradmark — and she’s already torpedoed her career. She’s going to have to take a new pen name and come up with a new series.

     

    https://twitter.com/kneupperwriter/status/993359859071381505

     

    And the RWA has taken up the challenge, so she’s pretty much screwed at this point:

    Liked by 1 person

  10. Like

  11. And thanks to the RWA’s efforts, Amazon has agreed to put back all the titles they kicked off due to the claim and not to kick off any further titles until the trademark “dispute” is resolved. And that is what author organizations like SFWA and RWA are for — NOT to be promotion depots for authors. Their job is to help author members with legal and business issues like this one, through being a collective organization that can bring more pressure, resources and information to bear than a sole author, and that includes civil rights legal and business issues for authors.

    Liked by 1 person

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