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How an author trademarking the word “cocky” turned the romance novel industry inside out

(Source: www.vox.com)

Gentle reader: Before we delve into the long tale that lies ahead — a tale of hubris, furious romance novelists, and intellectual property law — I ask you to take a moment to contemplate all of the “cocky” puns to which I, your humble reporter, have heroically chosen not to subject you.

I will not snidely remark that someone’s feeling cocky. I will not call this a cocky-and-bull story. I will not lament that the whole thing was started by someone going off half-cockyed. This is a sacrifice, and I have made it.

Thank you for bearing with me. Now let’s get into it: This is the story of #CockyGate.

The word cocky is beloved among certain romance novelists, both for its suggestion of arrogant, alpha-male heroes and for its euphemistic potential. After Penelope Ward and Vi Keeland’s Cocky Bastard became a major hit in 2015, romance novels with “cocky” in their titles became a veritable trend.

One among the trendsters was indie author Faleena Hopkins, a prolific self-published romance novelist whose books include a series she’s titled Cocker Brothers, The Cocky Series. It focuses on a set of brothers and eventually their children, all cocky and all with different job titles: Cocky Heart Surgeon, Cocky Cowboy, Cocky Senator, and so on.

But not long ago, Hopkins took steps to ensure that she wasn’t just one figure in a crowded field. Earlier this year, she registered for and received a trademark on the word “cocky.”

Here’s what happens when someone tells you that you have to change your book’s title

Australian indie authors T.L. Smith and Melissa Jane first heard about Faleena Hopkins through Audible. They’d sold Audible the audio rights for their collaboration, Cocky Fiancé, and everything was going well until Audible emailed Smith and Jane to say that it had received a notice that they were infringing on someone else’s trademark. Two days after Audible’s email, they say, they heard from Hopkins herself.

“Her first email briefly explains the trademark on the word Cocky and instructs us to change our title before she takes further action,” Smith and Jane told me via email. “The second email came thirty minutes later informing us she had already sent the infringement notice to Amazon, which unlike what her first email suggested, she gave us no time to act, let alone call each other to discuss options.” Smith and Jane say they had never heard of Hopkins or her books before she emailed them.

Trademarks are a matter of public record, so it didn’t take long for Smith and Jane to confirm that Hopkins was telling the truth: She did hold a trademark on the word “cocky.”

Technically, Hopkins actually holds two registrations on “cocky” through the US Patent and Trademark Office. One of them is a wordmark, which applies not to a specific word but to a specific word in a specific font. (For instance, Pepsi has a wordmark on the word “Pepsi” in its special Pepsi font.) This one grants Hopkins wordmark over “cocky” in a specific font in a series of romance novels, but it’s not clear that she can legally claim the particular font she’s using.

The second registration straightforwardly grants Hopkins a trademark on “cocky” in romance novel series, full stop.

“It was clear to us then that she had trademarked the word and we needed to change,” Smith and Jane said. “She had already contacted our two major selling platforms before we were made aware of the issue and we didn’t want our title suppressed if we delayed.”

They decided to retitle their book. It’s now listed on Amazon as Arrogant Fiancé.

But retitling an already-published novel isn’t just a matter of changing a single field on Amazon. Smith and Jane also had to change the interior text of the novel and upload the new file, as well as commission a redesigned cover. And while they were working on updating their ebook, Amazon alerted their paperback distributor about the infringement claim. “We had to prove we are the owners of the work, and to prove our identities,” Smith and Jane said. “So, although we had complied in changing the title, we still had a flow-on effect.”

And once the title had changed, Smith and Jane were left with reader swag and paperbacks they’d made for use at book signings, already printed with the now-outdated title. “Swag isn’t cheap, so having to replace that comes at a price,” they said. “It also comes down to the time wasted dealing with this. A good week’s worth of productivity has gone down the drain. All other book projects have come to a halt while we deal with this.”

Smith and Jane aren’t the only authors who received notices of infringement. Tara Crescent, the author of Her Cocky Doctors and Her Cocky Firefighters, says she received a letter from Amazon suspending her sales without ever receiving a letter from Hopkins. (Her books have since been reinstated.) Jamila Jasper, the author of The Cocky Cowboy, says she received a similar takedown notice. She changed her title to The Cockiest Cowboy to Have Ever Cocked.

In a series of tweets, Hopkins argued that her trademark helps protect her readers from unscrupulous copycats. “I receive letters from readers who lost money thinking they bought my series. I’m protecting them and that’s what trademarks are meant for,” she wrote. She added that she was not targeting books published before she published the first volume of her series in 2016. (Hopkins did not respond to a request for comment from Vox.)

Meanwhile, the trade association Romance Writers of America (RWA) says it has contacted an intellectual property lawyer for advice on a response. It has also intervened with Amazon, and Amazon has now said that it will stop suspending the various “cocky” books until the trademark dispute has been resolved.

“All genres — whether it’s romance, mystery, thriller, SFF — repeat words in their titles and series names, especially as they apply to tropes that can help readers quickly identify what type of story they’re picking up,” said RWA spokesperson Jessie Edwards in an email to Vox.​ “Using these words is not unique and should not be proprietary.”

“​​Having to change a title is costly and can most definitely affect sales,” she added. “Authors have invested money in cover art, production, swag, advertising, and more. Much of the publicity they’ve received for that title becomes obsolete after a change.”

Individual writers are also pushing back against Hopkins’s claim. Former lawyer and current indie author Kevin Kneupper has begun a petition to challenge the “cocky” trademark. “I think this maybe has slipped through and now has to be challenged,” he told me. “I don’t think that the Patent and Trademark Office had all the information they needed.”

Such as? “My belief is that Ms. Hopkins didn’t provide them with details about when and how she used the title,” Kneupper says. “From what I’ve seen, she did not start using this series title until about a month after the trademark was filed.” That is, Cocker Brothers, The Cocky Series used to be called something else and only became The Cocky Series after Hopkins had already registered the trademark. (That would explain the unwieldy title.)

It still wouldn’t be reasonable for Hopkins to claim a trademark over the word even if she had been using it in her series title at the time, Kneupper told me — “but this is a kill shot.”

Trademarks, explained

So with all that said, here’s the central question: Can just anyone go around trademarking common dictionary words?

“It depends,” Mark McKenna tells me. McKenna is a law professor at Notre Dame who specializes in intellectual property law.

“It’s not necessarily a problem to claim trademark rights on a common word,” he explains. “The way trademark law works is you only acquire rights in relation to certain goods and services. For instance, “apple” is a common word, but Apple has it trademarked in relation to computers. It would be a lot different if they were trying to claim rights to the word ‘apple’ for fruits.”

Hopkins’s trademark gives her rights to the word “cocky” in relation to a series of romance novels, and that, McKenna says, is sort of a gray area. “Trademark law is not supposed to let you claim rights on a title because trademark indicates a source of goods. If you buy a pair of shoes with the Nike logo on them, that tells you that they’re coming from the Nike brand, which tells you about how the shoe is made and under what conditions,” he says. “A single work of authorship isn’t produced in ways such that you need information about the physical characteristics of the book, like the way it’s bound or anything like that. The title is telling you about the content, and we usually think of things related to the contents as being copyright’s domain.”

Broadly speaking, copyright is designed to protect creative and intellectual property, like the contents of a book, although a book’s title cannot be copyrighted. Trademark, meanwhile, is designed to protect a brand, so that consumers don’t confuse one similar-looking product with another. You don’t trademark a book series title unless you can prove that the title is part of your specific brand.

That said, book series titles do get trademarked. McKenna points to the Magic School Bus books, which have a trademarked title. “But even those claims are a little questionable,” he says, “because it’s telling you about authorship and not the production of the physical good.”

The way Hopkins is using her trademark, however, is not a gray area. “It’s almost classic overreach,” McKenna says. “Some would call it trademark bullying.”

“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.”

What that means is that a group of indie authors have had to spend time and money changing their titles because of trademark overreach from an author whose claim to her trademark is questionable at best. But challenging Hopkins’s claims would require resources that not every indie author has access to.

Kneupper’s petition to challenge is the first step to getting the trademark overruled. If the trademark is overturned, McKenna says, there will be no penalty for Hopkins — she might have to pay her opponent’s legal fees if the court determines that it’s an exceptional case, but that’s about it.

The bigger penalty for Hopkins seems to be the cost to her reputation. The romance community at large is outraged by her tactics.

“You are a nasty piece of fucking work, lady,” wrote author Jenny Trout in a widely shared blog post responding to Hopkins’s trademark claims. She went on:

Nobody was ever copying you. Nobody knows who you are. The most common reaction seen on social media when your name started coming up was, “Who?” followed by “Who does she think she is?” We had to ask these things because we legitimately had no clue you existed. But boy howdy, do you exist now. See, you’re not famous, but you’re infamous. You probably thought all publicity was good publicity. That is not the case if the publicity you’re getting is just making people become more and more furious and fed up with you. I haven’t seen anyone say they planned to read your really interesting and unique books as a result of your Highlander mentality. I’ve seen a lot say the opposite.

Ironically, by registering a trademark in what she says was an attempt to protect her “cocky” brand, Hopkins may have done irreparable damage to her name brand instead.

One could almost say she got too cocky.

Look, you had to give me one.

More Info: www.vox.com