Getting Cocky:Trademarking Romance Titles:

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Sorry if this is elsewhere already, but has anyone heard much about this at all? I'm only catching sketchy details. It surrounds Faleena Hopkins trademarking 'COCKY' for a title and forcing other authors to change theirs.

On April 14th, 2018, Romance Author Faleena Hopkins put out a trademark for “Cocky” in what is allegedly an attempt to protect her book series, The Cocker Brothers, from being copied by other authors. On May 1st, 2018 another trademark for “Cocky” was also processed. There are slight differences between the two trademarks, both of which were originally filed for consideration by the Trademark Office on 9/12/2017
Authorgrow

From one of the authors forced to change their title:
NEW COVER!! No More Cocky.

In light of the current situation with the new trademarked name from another author, TL Smith and I are required to change our title.
We appreciate all the support given by readers and fellow authors. You guys seriously rock!!
The cover is in the process of being updated on Amazon so if you want the old cover, get in quick. If you want the new cover, hold tight...it's coming.
Mellissa Jane

I can perhaps understand the stylised font trademark for the first one, but then it also looks like she's going after Cocky in standard character too. And it's unclear whether it's only for a series, or includes single novels.

I've not really seen this before with romance titles.
 

ElaineA

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I was following this yesterday, too. It seems what she's done is trademark a specific font of "Cocky," as well as filed for a "wordmark" for general "cocky." Most of the knowledgeable people speaking about it yesterday seemed to agree she could enforce a trademark her series name (The Cocky Brothers, or something) but not a title or the individual words. The same way Harry Potter is trademarked as a brand, but you can still use the words Harry or Potter in a book title. Just not them together.

It is going to be challenged. RWA is hiring an IP (intellectual property) attorney to look into it. So for now, if anyone (especially indie authors) gets a notice from her, you don't have to change anything immediately (and also it would be helpful to notify RWA and/or the IP attorneys who are stepping up to assist). Attorney Marc Whipple was offering to look at paperwork for free (not sure if that still stands but it's worth asking) and has posted in his blog about what he knows so far. It's evolving, so his info is mostly an overview of the law in play. There will be challenges to both her mark, and her expansive threat.

One other thing. If you or anyone you know has been affected--has changed a title/cover, etc, in response to a letter from her--and has incurred costs associated with it, keep track of everything. There is word of potentially going after her for recompense if she made improper threats (beyond what her mark actually protected). This author has pulled other territorial stunts too, as in publicly blaming other authors for trying to ride her coattails because they have the same stock photos on their covers. *hard eye-roll* She's definitely in the #AuthorsBehavingBadly category.

Thankfully, Romancelandia doesn't suffer fools gladly. The reaction yesterday was swift, pointed, and hilarious (nsfw).
 

Maryn

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Oh, my, that Twitter thread is marvelous. And the author wanting to trademark an adjective used by many others is a buttwipe.
 

mrsmig

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Oh, my, that Twitter thread is marvelous. And the author wanting to trademark an adjective used by many others is a buttwipe.

I loved the way she just shrugged off the difficulties (not to mention the expense) she's going to cause for other authors:

[FONT=&quot]t’s a brand. And everyone who wants to can keep their books, rankings, reviews and their money by retitling which takes one day.


[/FONT]
The cluelessness and arrogance is jaw dropping.
 

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This author has pulled other territorial stunts too, as in publicly blaming other authors for trying to ride her coattails because they have the same stock photos on their covers. *hard eye-roll* She's definitely in the #AuthorsBehavingBadly category..

Thank you for all that, Elaine, and -- seriously? She pulled that with stock images too? Jesus....and... oh lord, that's what the Jay Aheer comment was in relation to! I know Jay's artwork as a cover artists, so Jay must have used the same image. You can usually tell Jay's covers, and she's one for doing her research and making sure the image looks different if it's used on other covers. Apparently that wasn't good enough for this author who used the same image too.

Oh, my, that Twitter thread is marvelous. And the author wanting to trademark an adjective used by many others is a buttwipe.

I really thought it was a joke to begin with, that no author would be so serious about this. Although I love Zoe York's aka Cocky Ainsley Twitter profile name.

I loved the way she just shrugged off the difficulties (not to mention the expense) she's going to cause for other authors

Yeah, that's just it. It's already cost one author a new cover, in paperback too. They have links in their post guiding them to the IP lawyers and RWA posts on what to do.


Elaine, your post also also explains why two are filed, thank you!

NEW: It appears that the publisher also has a registration for the mark as a standard word mark. It’s quite common to register both a word mark and a non-word mark which contains a stylized version of a word mark because that way if your standard work mark registration fails, you can fall back on your non-word mark. So this part of the analysis does NOT apply to the registration that is just for the word mark “COCKY.”
Author Trademarks a Popular Word in Book Titles – What Does It Mean?

I'd really, really love to see how all of this turns out now.
 

ElaineA

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And here is a notice one author received. So far it's only on Twitter--not sure if you can see tweets without Twitter? Anyway, BadAuthor is just as snotty as you'd expect. What a jerk.

PLOT TWIST! There is a potential wrinkle in that the font she used and trademarked may be a font purchased from Creative Market, which specifically prohibits trademarking using items purchased there. (I assume they own, or the designer owns, the marks for the font already. You can't trademark someone else's protected art/IP.)

:popcorn:



**Also can we talk about the hashtags coming out of this, because...:ROFL:


One other thing that's coming up...Cease and Desist letters come from lawyers, not companies. In this threat (SHE is sending) she names a firm but not a lawyer, she says "Federal Trademark Commission" (there is no such thing), and the threat of damages is laughable.

My suspicion is that she registered the marks herself and made up the rest using kinda-sorta close-sounding stuff. (Dammit, if only I were a gambling woman!) I did wonder, too, how come she'd be willing to incur all the legal fees around this, which would not be insubstantial. *moar popcorn!*
 
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SepiaAndDust

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From what I've seen about the issue, it's an interesting case. Certainly, the point of trademark is to prevent confusion in the marketplace. I don't know enough about her or her books to say whether such confusion actually existed. Maybe it did. Maybe not.

A C&D is not a binding legal instrument. C&Ds go out all the time about all kinds of things. Usually, a C&D is used to maintain a trademark--if you don't defend your mark, you can lose it--and just sending the letter without any kind of follow-up is enough to show defense. Of course, they're sometimes used to rightly defend valid marks and they're sometimes used to bully people. I don't know which case is more in play here.

However, I don't think that the broader trademark application can stand. Cocky is just too generic and has been a staple of the romance genre for too long.

So, assuming that Hopkins is not an idiot and that she has adequate legal counsel, my guess is that she is using the C&Ds with no intention of following up. Because I do not believe that her claim to the broader mark can survive a courtroom.
 

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This is going to go massively wrong for her. And after seeing how aggressive she was in her cease and desist emails, I can't say I feel too bad about it.
 

ElaineA

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So, assuming that Hopkins is not an idiot and that she has adequate legal counsel, my guess is that she is using the C&Ds with no intention of following up. Because I do not believe that her claim to the broader mark can survive a courtroom.

She's targeting other indie authors, correctly guessing that they'll be frightened enough by the letter to do what she says. Jamila Jasper (who posted the letter to Twitter) changed her title. It's threatening to someone who doesn't have the resources to hire an attorney, and Hopkins knows it. She's culling the competition where she can. Note, there's no indication she's gone after any of the big fish.

Interesting sidenote, I just searched "cocky" on Amazon (under books), and the entire page comes up with Hopkins' books. It's both "sponsored content" AND search matches, which is interesting considering Vi Keeland and Penelope Ward's Cocky Bastard has 5 times as many ratings on GR, and more than twice as many reviews as Hopkins' most-reviewed on Amazon. And even when you specifically search Cocky Bastard, Hopkins' "sponsored content" ad comes up ABOVE Keeland's book.

She's quite the "entrepreneur."
 

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I've been reading up on this today and can't get past the boggling stage. This is not going to end well for her.
 

SepiaAndDust

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Note, there's no indication she's gone after any of the big fish.

That would reinforce my own personal opinion of her actions, then. She does not want her claim to wind up in court. She can send whatever C&Ds she wants, but until she sues somebody for their use of the term, nobody has standing to say that she caused them harm, and filing for declaratory judgment would be risky.

Best bet is to handle it administratively through the Trademark Trial and Appeal Board. IIRC, it's too late to file in opposition (deadline was early March, I believe), but a petition to cancel can still be heard.


Interesting sidenote, I just searched "cocky" on Amazon (under books), and the entire page comes up with Hopkins' books.

I get about the same for the first page--mostly Hopkins, but with a Kingsley and a Price mixed in. The second page is more diverse.

Sorted by Avg. Customer Review, however, Hopkins barely cracks the first page with only one entry.
 

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And here is a notice one author received. So far it's only on Twitter--not sure if you can see tweets without Twitter? Anyway, BadAuthor is just as snotty as you'd expect. What a jerk.

PLOT TWIST! There is a potential wrinkle in that the font she used and trademarked may be a font purchased from Creative Market, which specifically prohibits trademarking using items purchased there. (I assume they own, or the designer owns, the marks for the font already. You can't trademark someone else's protected art/IP.)

:popcorn:



**Also can we talk about the hashtags coming out of this, because...:ROFL:


One other thing that's coming up...Cease and Desist letters come from lawyers, not companies. In this threat (SHE is sending) she names a firm but not a lawyer, she says "Federal Trademark Commission" (there is no such thing), and the threat of damages is laughable.

My suspicion is that she registered the marks herself and made up the rest using kinda-sorta close-sounding stuff. (Dammit, if only I were a gambling woman!) I did wonder, too, how come she'd be willing to incur all the legal fees around this, which would not be insubstantial. *moar popcorn!*

:Jaw:

Wait, what... on that C&D, she's claiming trademark no matter the font, including the font she... maybe never had permission to trademark in the first place?


And yeah on the hashtags. :ROFL:I think there's avatars on FB too going around.
 
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ULTRAGOTHA

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Courtney Milan's thread had already appeared in my twitter feed and I came here to see what the folks on this board made of it.

Hopkins appears to have made an almighty cock-up in trademarking a copyrighted font. Apparently she's whining at all the blowback that she's been getting. I was particularly amused at Milan wondering whether the owner of that font would approach Amazon for them to take down her titles because of copyright infringement. Hopkins' behaviour is so reprehensible I wish he would.
 

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In Australia, it's pretty much written into the Constitution that you approach a cockatoo, wild or captive, with 'Hello, cocky'.

And we have 14 species, including the palm cockatoo, Major Mitchell's cockatoo, gang-gang cockatoo...and galah.

So there's the follow up anthology.
 

Cindyt

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Oh, my, that Twitter thread is marvelous. And the author wanting to trademark an adjective used by many others is a buttwipe.

She needs to get over herself.
 

frimble3

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Please, would someone talking about this on social media call it the 'Cocky Cock-Up'?
A) 'Cocky' is a general adjective, not merely a variant of her character's name. Real people use it to describe other real people.
B) If your lawyers think you've got a leg to stand on, they send the letters.
C) 'Cocky' jokes are not 'Romance'. Erotica, maybe, but not Romance.
D) Pity she didn't try to trademark 'Cocker'. I bet the AKC has deep pockets and big teeth.
 

Cindyt

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Please, would someone talking about this on social media call it the 'Cocky Cock-Up'?
A) 'Cocky' is a general adjective, not merely a variant of her character's name. Real people use it to describe other real people.
B) If your lawyers think you've got a leg to stand on, they send the letters.
C) 'Cocky' jokes are not 'Romance'. Erotica, maybe, but not Romance.
D) Pity she didn't try to trademark 'Cocker'. I bet the AKC has deep pockets and big teeth.
And I image Joe Cocker's estate wouldn't be happy.

Wish she'd go after Lee, because the Bruce Lee estate would eat her bank account. That's what she needs.
 

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