Don’t Get Cocky! 3 Tips Every Author Needs to Know About Trademarks and the “CockyGate” Debate

Don’t Get Cocky! 3 Tips Every Author Needs to Know About Trademarks and the “CockyGate” Debate
June 4, 2018 2 Comments For Authors, Writing Phoebe Darqueling

If you are an active member of Facebook writing groups or keep up to date on publishing news, you’ve probably heard about Faleena Hopkins over the past few weeks. Things got even hotter on May 26 when Hopkins began legal proceedings against people seeking to challenge her claim to the word “cocky.”

This month on Our Write Side, we already planned to cover a number of legal issues, including trademarks. In light of “Cocky Gate,” it seemed like a great way to kick off the month. In this article, we’ll look at:

  • What is a trademark, its limitations, and when they are appropriate
  • The major players so far in the debate of the trademark of the word “cocky”
  • The legality of the claim and how it has affected writers
  • Tips for authors about how and when to protect their work

 

Author Tip #1: Understand the Difference Between

a Copyright and a Trademark

 

On the surface, it may seem like a trademark and copyright are the same thing. They both act to protect the intellectual property of creators. It’s important for creators to understand how they are different and when to employ each to ensure their hard work can’t be stolen by others and used for profit.

What is a Copyright?

 

According to the US Patent and Trademark Organization, here is the definition (bolded words are from the original text, italics are added for emphasis):

“A copyright protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture.  The duration of copyright protection depends on several factors. For works created by an individual, protection lasts for the life of the author, plus 70 years.  For works created anonymously, pseudonymously, and for hire, protection lasts 95 years from the date of publication or 120 years from the date of creation, whichever is shorter.”

The topic of this post is trademarking, so I am not going to go into greater detail on copyright here. The main thing to keep in mind is that if you want to protect a novel or collection of stories or poetry, you need to file for a copyright. This protects the actual word combinations you have put together inside of your book. No one else can take the work you created and claim they created it, whether or not any money changes hands. It protects the creator from losing control of the work. If you want to learn more, visit the US government website on copyright law.

What is a Trademark?

According to the US Patent and Trademark Organization, here is the definition (bolded words are from the original text, italics are added for emphasis):

A trademark is a word, phrase, symbol, and/or design that identifies and distinguishes the source of the goods of one party from those of others. A service mark is a word, phrase, symbol, and/or design that identifies and distinguishes the source of a service rather than goods. Some examples include brand names, slogans, and logos. The term ‘trademark’ is often used in a general sense to refer to both trademarks and service marks.

“Unlike patents and copyrights, trademarks do not expire after a set term of years.  Trademark rights come from actual ‘use.’ Therefore, a trademark can last forever – so long as you continue to use the mark in commerce to indicate the source of goods and services.  A trademark registration can also last forever – so long as you file specific documents and pay fees at regular intervals.

Must all trademarks be registered? No, registration is not mandatory.  You can establish ‘common law’ rights in a mark based solely on the use of the mark in commerce, without a registration.  However, federal registration of a trademark with the USPTO has several advantages, including a notice to the public of the registrant’s claim of ownership of the mark, a legal presumption of ownership nationwide, and the exclusive right to use the mark on or in connection with the goods or services set forth in the registration. For more information about ‘common law’ trademark rights and the advantages of federal registration see the Basic Facts About Trademarks brochure.”

Notification of trademark may be expressed using either of these symbols or a hypertext ™:

                                

Some trademarks you are probably familiar with would be the words “Coke” and “Pepsi” in their distinctive fonts and colors. The “swoosh” that is used to identify products created by Nike is a trademarked logo. Book titles may be trademarked under certain circumstances; for instance, the Harry Potter series titles. No one else can sell a book entitled Harry Potter and… without violating J.K. Rowling’s trademark. (For more information on if and when book titles can be trademarked, see below.)

Notice that I used the word “sell.” Fanfiction using the words “Harry Potter” may be written and distributed without violating trademark as long as no money changes hands. Trademarks are in place for the sake of protecting paying consumers from buying sub-par products and protect the income of creators from shameless copycats.

Who is Faleena Hopkins and What Did She Do?

Hopkins is a romance author. According to my quick perusal of her works on Amazon, she began publishing her romance series in June 2016. If you don’t count box sets, there are 19 books in the series that all contain the word “cocky” in the title (for instance, A Cocky Mother’s Day was released earlier this month). She appears to have trademarked two separate titles for the series, both “Cocker Brothers” and “The Cocky Series” (though in the latter, technically only the word “cocky” has the requisite mark). The Cocky Series offerings on Amazon indicate she has around 200 – 600 reviews for those books. Her earlier works seem to be devoted mostly to werewolves and are not as popular.

In early May, she was awarded the trademark of the word “cocky” (Trademark Reg. No. 5447836, for “COCKY,” for the following goods: In IC 009: A series of downloadable e-books in the field of romance. IC 016: A series of books in the field of romance, source. For more info, see the full page in the trademark database).

She had done so in a limited way before, but at this time Hopkins began contacting romance writers who used that word in their titles. In the romance genre, “cocky” is a widely used pun because of its close resemblance to a word for male genitalia. These notices were not official, legal documents; rather, they were usually emails meant as a professional courtesy before she began legal proceedings against writers she believed either deliberately copied her, or who were profiting from her fans who bought the wrong book.

In some cases, the books had identical titles such as Cocky Cowboy by Jamila Jasper. At the author’s expense, it has been re-released as The Cockiest Cowboy to Have Ever Cocked. In a radio interview, Jasper said she thought the new title was funny so she didn’t hate it, but the original was better. She changed it willingly to avoid any possible legal entanglement, not because she had actually broken any laws she was aware of at the time. She had never heard of Hopkins or her book when she wrote her own interracial cowboy romance which does not bear any resemblance in content to Hopkins’s story except for the presence of the titular cowboy.

Jasper decided not to wait for any sort of official reprimand from Amazon before changing her book’s title and cover, but others woke one morning to find their books and reviews simply no longer existed. Hopkins reported several titles to Amazon for infringement, and even books that only contained the word “cocky” in the keywords, and not the title were affected, when Amazon took matters into their own hands. Even reviews of other books that used the word “cocky” as a descriptor were taken down, where reviews are the lifeblood of indie authors.

What Does it Take to Rebrand a Book?

Hopkins made claims on Twitter that what she was asking of authors was no big deal, stating that changing a book title only takes one day. USA Today bestseller Jenny Trout did a great job in her Cocky Gate article of laying out all the things to consider if a writer has to change the title of their book, so I’ll let her do the talking.

“Except, retitling doesn’t take ‘one day.’ And it impacts authors in countless ways. For an author to change the title of their book, they must:

  • Change the text file of the book to reflect the new title
  • Change the text files of any books that contain the title in an ‘also by’ section
  • Acquire new cover art
  • Upload the retitled book as an entirely new work on platforms that don’t allow title changes
  • Assign a new ISBN
  • Change the text file of the paperback version
  • Change the cover file of the paperback version
  • Repeat the proofing process on the paperback version
  • Dispose of any paperback copies on consignment through brick and mortar stores and re-stock with the new paperbacks
  • Change keywords on all listings
  • Published audiobooks will be subject to all of the above, but they’ll also have to be edited with the title re-recorded, and unless the book is selling really well, chances are the audiobook publisher will simply pull the book from their catalog and call it a loss
  • If the author paid for the recording and production of their audiobook on their own, they will also have to pay for the re-recording and production or pull the book

“If you’re an indie author trying to write and produce your next release, all of these changes can impact your schedule. They are time-consuming and potentially expensive. Those are just issues affecting the actual product. Consider it from a promotional angle:

  • Any book- or series-specific printed promotional items from bookmarks to T-shirts are now garbage
  • Ads purchased on websites or for print publication must be taken down or cancelled
  • Banners and signage printed for book expos and events? Also garbage
  • Author websites have to be updated with the new cover and title
  • Any reviews received from blogs now have the wrong title and, depending on the platform, the wrong buy links”

That sounds like a lot more than one day’s worth of work to me!

Was Faleena Hopkins Within Her Rights to do This?

Oddly, in some cases, the books affected predated the beginning of Hopkins’ trademark (though not necessarily her series that now bears the ™). She claims she didn’t send any takedown notices to those authors, but others claim the opposite or point out that Amazon didn’t make that distinction. I find this to be especially interesting in light of the third paragraph defining trademark above. It specifically states that something does not need to actually be a registered trademark in order to enjoy protection. So even before doing research, it seemed to me that if “cocky” is, in fact, a trademarkable word, the writer who used it first should be awarded the trademark, not the first person to file the paperwork.

According to Marc Whipple, an intellectual property lawyer blogging about the case appears to agree with me. “The way a producer of goods accrues trademark rights, as I said above (go look, I’ll wait) is to use the mark in commerce in association with the particular goods at issue. You (usually) cannot try to claim something as a trademark when someone else was already using it for similar goods, because assuming an association could be formed between those goods and that mark, it has likely already formed in relation to the goods already on the market. And if it hasn’t formed, that is an indication that is is unlikely to form in the first place. In any event, prior use of a trademark almost always preempts attempts by a later user to claim exclusive rights in a mark.”

Fish and Richards law firm goes farther (italics added for emphasis):

“Under Section 7(c) of the Trademark Act, the date of filing an application, whether based on actual use or intent to use, establishes a registrant’s date of “constructive use,” establishing nationwide priority except against a person who began use (or applied for and ultimately obtained registration) of the mark prior to that date.”

Backlash

(image from Family Guy)

The organization Romance Writers of America have petitioned the e-book giant to stop them from removing further titles until the suit filed to revoke Hopkins’ trademark has made it through the courts and Amazon has complied. But the damage may have already been done. Hopkins reports that she has lost income, and she and her family are being harassed by the “wolves” on social media.

Author Tip #2: Know What Can’t be Trademarked

Even within the broad definition of protecting a word or phrase, trademarks do have limits. So where do legal professionals draw the line?

Descriptive or Generic Phrases Can’t Be Trademarked

Nobody can slap a ™ symbol the words “shoe store” and demand all purveyors of pumps have to change their signs or business names. This phrase and others like it are considered too broad to be viable for a trademark because they simply state what a thing is. Big Lots!™ is a chain of “big box stores,” but “big box store” is not a trademarkable term because it is a phrase that describes a category of store.

Individual Titles are Considered Descriptive

This includes book titles. “The title, or a portion of a title, of a single creative work must be refused registration under §§1, 2, and 45 of the Trademark Act, 15 U.S.C. §§1051, 1052, and 1127, unless the title has been used on a series of creative works. The title of a single creative work is not registrable…” Source.  

This is why both Sheryl Crow and The Beach Boys can have songs entitled “All I Wanna Do.” Their albums, on the other hand, could potentially be trademarked because they are a collection of songs and that collection is unique, even though individual songs could appear in a different order in a later collection of “Greatest Hits.”

In the conversations happening all over the web about Cocky Gate, many have pointed out the dangerous precedent allowing the trademark of “cocky” to stand would present. For instance, what if someone slapped a trademark on a word like “vampire” or “shifter”? Entire genres would have to be stripped from Amazon. This is not likely to happen, but to many, that is the logical extension of what is going on. To be clear, “Vampire Diaries” can be trademarked because it is both a book title and series title. But not just the word “vampire.”

I personally wrote a book called No Rest for the Wicked, and there are dozens of other books by that title. I would never be able to go in now and trademark just the title. To my knowledge, none of these books involve a con woman in the 19th century who can talk to ghosts, so there would no grounds for any action between these other authors and myself. We can have the same title if our products are different.

If I wanted to name my series after the first book (I do not), I would be able to potentially trademark “No Rest for the Wicked Series,” though I would probably still have some trouble with that because it is a common phrase. It already has associations outside of my creative work, therefore it is considered outside of the purview of a trademark.

Was “Cocky” Ever Eligible for Trademark?

It will be up to the courts to decide if the word is common enough that the original trademark should never have been issued. However, considering the long history of the word in book titles before Hopkins filed her paperwork (some sources say 700 or more), it seems likely they will not rule in her favor when it comes to her ability to sue authors over individual titles that came out before her trademark. Constance Grady’s Vox article consulted IP lawyer Mark McKenna, who said, “It’s quite clear that you can’t enforce your trademark rights against somebody else who’s using the term just in the title of the book or in the content of the book,” McKenna says. “It’s a doctrine that exists to keep trademark law from treading on First Amendment territory. It’s a pretty well-established doctrine with a whole bunch of cases.”

I’m no lawyer, but after looking over the documents myself it looks like what she did was gain the legal right to call her series “Cocky”, not even “Cocker Brothers™, The Cocky™ Series” as she claims. The only word she got the mark for was cocky, not the whole phrase. The purpose of a trademark is to have a single unique signifier, but confusingly Hopkins appears to carry two trademarks for her series title. (It is possible the repeat of the ™ was an oversight on Amazon and not actually part of the series title. It is difficult to tell.) I am curious to see how that aspect plays out, because if the original series title was “Cocker Brothers” it seems that would take precedence as the unique identifier for her work anyway. According to Kevin Kneupper, the IP lawyer and indie author behind the petition to end Hopkins’ trademark claim, notes that “she did not start using this series title until about a month after the trademark was filed.” This undermines her claims even more.

To further complicate matters, Hopkins filed for protection of both the generic word “cocky,” as well as a specific subtype called a “wordmark.” This means the appearance of the word “cocky” in a distinctive font. It turns out she used a font that can’t legally be used in a trademark as specified by the font’s creator, which renders the wordmark at least invalid. This is a somewhat tangential issue to the central one of the word itself but is part of why this has gotten so complicated.

Author Tip #3: Know When it is Possible to Use

Trademarked or Copyrighted Material or Reference it

Legally

You may have noticed that I have used the word “cocky” all over this article, but only used the trademark symbol a few times. That’s because trademarks have limitations. If this whole debate has gotten you afraid to violate trademarks, don’t fret. There are actually completely legal ways to reference trademarked and copyrighted material in your writing that have no legal recourse. Remember, a trademark’s purpose is to differentiate things using logos or specific slogans so consumers don’t get confused. If you want to borrow some song lyrics that are dear to a character’s heart, then you are looking at a question of copyright instead because that is reproducing part of the product itself.

Give Credit

There are plenty of books that will open with a quote from a poem, book, or song. It’s a nice way to preface the chapter or story, and prime the reader to think about it a certain way. If you ever wrote essays in high school or college, you more than likely had to learn how to reference things. Giving credit in fiction works in much the same way.

In academic writing, you will either have a Works Cited section (the books, articles, etc. from which you drew specific quotations) or a Bibliography (the books, articles, etc. that you used to inform your opinion and/or for further reference for the reader). In addition, you have to use in-text citations that vary depending on the specific style sheet. Some require the page number, some just the year of publication, for others just the author’s name is enough as long as there is only one entry for them on your Works Cited page. Luckily for fiction writers, it’s a lot simpler.

At the beginning of chapters, these quotations often take a form like this.

“I’ve always depended on the kindness of strangers.” Blanche DuBois, A Streetcar Named Desire by Tennessee Williams

While you certainly can include a section at the end of your book for giving fuller credit, you don’t have to. As long as the original author’s name and title of the work are included somewhere in your text, it is clear enough to the reader that you, the writer, are not claiming authorship of the text. Copyright guards against stealing someone’s words and pretending they are their own, so as long as you show you aren’t making this claim, no harm done.

Get Permission

If a character is singing a few lyrics along with the radio, you probably don’t need to do more than say so (though the singer would love it if you dropped their name in there, too). If you want to play it really safe, it usually isn’t any more complicated than just asking the creator (or the company that represents them) for permission. Copyright lasts for decades after the creator’s death, so you may have to contact their estate instead. Public relations people usually make themselves easy to find even if you can’t get in touch with the artist themselves.

In this case, you should send the scene where the quotation takes place so they can assess if you are in any way abusing the source material. If the lyrics are used to motivate a murder, they might have a problem with it (depending on the genre of the song). But want to use some lyrics to woo the love interest? They will probably be happy to give you the green light because it gets that song in front of more people, which is free advertising.

What About Trademarked Product Names?

If we had to put the ™ or ® symbol in writing every time we said Coke, our pages would be littered with tiny script. Imagine if your characters are in a Denny’s Restaurant™ and one orders a Sprite™ and another wants a Cherry Coke™. It would get ridiculous.

The bottom line is that trademarks are in place to keep customers from confusing one product for another. No one is going to mistake your word “Coke” on the page for a Frosty beverage. It’s just not going to happen. Which is why the symbols aren’t necessary.

To protect a brand’s image, it is possible you could be contacted by the company if the Coke in your story turned out riddled with rat feces. This could fall under the heading of libel (note, not slander) because someone could read that story and think that there really was a health concern which could negatively affect their sales. If this is the case in your story, you should ask yourself if it is really important what brand of cola your character is drinking, or is the rat poo the most important factor? If so, just use a generic term or make up a new soda brand. Movies do this sort of thing all the time. For instance, in Kevin Smith’s Dogma, “Mooby the Golden Calf” was a pretty clear homage to Mickey Mouse, but he couldn’t get in trouble because he didn’t reference a real product or brand.  

What is Next for Cocky Gate?

Both the Romance Writers of America and lawyer/author Kevin Kneupper have stated publicly that they are taking legal actions against Hopkins. On May 26, she filed a countersuit against Kneupper, as well as author Tara Crescent, who published a series called “The Cocky Series” starting in August 2017. She also included the book publicist Jennifer Watson for organizing a “protest” anthology called “Cocktales” and participating in the “smear campaign” on social media against Hopkins. You can read the 36-page document in full, but here are some highlights.

The suit makes some bold claims. (The all-caps in the text to come are from the original document.) After stating how Hopkins has made substantial “monetary, marketing, and time commitment and investment” in her novels, it says “As a result, of the notoriety of HOPKINS’ and her writing, as well as the popularity of the HOPKINS COCKY NOVEL SERIES, the Federally Recognized Trademarks have become well known to consumers…as originating with HOPKINS.” While it is possible to show that defendant Crescent did have prior knowledge of Hopkins’ books (she helped promote them), this claim to fame is rather far-reaching. Especially considering the 2015 book, Cocky Bastard by Penelope Ward and Vi Keeland, is the most well-known of the “cockies.”

The most damning lines of the claim start on page 23. I don’t mean damning for Hopkins’ case, I mean damning for Hopkins herself. In reference to a precedent set by Hasbro, the missive states that “unsophisticated consumers aggravate the likelihood of confusion” and furthermore “In this case, it is respectfully submitted that books are often impulse purchases based on a cover or title.” It goes on to state that because her books are geared at a wide segment of the American public, “no particular sophistication is implied.” Though from a legal standpoint it is completely valid to state things this way, the implication that romance readers are unsophisticated feels hungry for anything “cocky,” regardless of the author’s name clearly printed on it, has already has caused a great deal of backlash against Hopkins. Indeed, this is the only defense that she and her lawyer will be able to use, and it is bound to alienate potential customers even more than the tweets and blog posts already circulating.

At first, it looked like this civil suit filed by Hopkins was going to move forward before the formal petition to overturn her trademark would occur. The trademark case could possibly take as long as a year, while Kneupper, Crescent, and Watson will see the inside of a New York District courthouse in June. Hopkins is clearly feeling very cocky, but only time will tell who will strut their stuff and leave with the coop with the “cocky crown.”

UPDATE: The courts have spoken, and Hopkins exclusive claim to the work “cocky” in book titles has been overruled. Get the full story.

(Unless otherwise noted on the images or in captions, images in this article were found on ClipartBest.com)

Phoebe Darqueling-Columnist

 

Phoebe Darqueling has a background in Museums Studies and she studied intellectual property law as part of her Master’s degree. As the child of an attorney, she took an immediate interest in this debate and has been following this case closely since it was reported on in May 2018. Her con woman character, Viola Thorne, is no stranger to breaking the law, and Phoebe hopes to see her debut in No Rest for the Wicked in 2019.

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Phoebe Darqueling Phoebe Darqueling is a freelance writer, editor, and aspiring novelist, with plans to begin publishing her first series this summer. In her regular life, she is the Creative Director of a creativity competition for middle school kids, but spends her free time teaching herself graphic design and gobbling up all of the marketing and writing resources she can find. Though Steampunk is her favorite sub-genre, she writes science fiction and fantasy across the board, and dabbles in contemporary romance under the name M.E. Anders. Over the past four years, she's lived in California, Wyoming, Minnesota, Greece, and Bulgaria, but currently hangs her hat in Michigan.
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  1. 2 Comments

    Heidi Angell

    Great article, Phoebe! Did you see that Kneupper was removed from the suit by the judge. He was not going to decide Trademark! Lol. He also disagreed with Hopkins claim that romance readers are unsophisticated consumers. I kind of fell in love with that judge after reading the transcript!

    Reply
    1. 2 Comments

      Elizabeth Buffy Stark

      Great research, Phoebe. Thanks for delving into this at length for us writers who are concerned about the whole issue and where it may lead in the future for the wider publishing world (especially the indies).

      Reply

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