Trademarks are among the most important ways creative professionals can protect their brand and ensure their fans can easily identity their work, as well as protect themselves from similar products from others. But trademark allocation brings up tough questions about what a reasonable trademark would consist in, and at what point trademarks are being used unfairly to stifle competition.
Since 2016, novelist Faleena Hopkins had been writing romance novels in her ‘cocky’ series, for example “Cocky Roomie” and “Cocky Biker”. She had written 19 books and sold 600,00 copies in this series, and so wanting to protect her brand, she decided to trademark “cocky” to keep copycat authors from riding on her coattails. When her trademark registration was issued in April 2018, she sent out notices to several authors with books with “cocky” in their title, informing them of the trademark violation and asked them to either change their titles or face legal action.
Initially, a few authors complied with her demands. Jamila Jasper had published a book titled “Cocky Cowboy” in March 2018, with had the same title as a book Hopkins had published in September 2016, and was one of the authors to receive a cease and desist letter. She shared a screenshot on Twitter:
She wrote on her blog that she decided to err on the side of caution and unpublish her book, and instead republish it after renaming it “The Cockiest Cowboy To Have Ever Cocked” and paying money to redesign its cover. Although she said she’s trying to remain optimistic, she admitted that “it hurts to be attacked and it hurts to have your integrity questioned”. She also argued that it is “exceedingly common” in the romance publishing industry to have similar, even identical titles, and that therefore was incredibly unfair to demand other authors take down books they’ve already published and to ask them to refrain from using “cocky”, an incredibly common descriptor in this genre.
The internet agreed with Jasper, and a massive online backlash was unleashed against Hopkins. Writers piled on in her social media accounts, with negative comments far outnumbering likes and retweets/shares. On facebook, she was inundated with comments from authors and readers, declaring that they were going to boycott her. On sites that allow for reviews like Goodreads and Amazon, her books were hit with negative reviews which explicitly referenced how she had targeted indie authors who didn’t have the resources to fight her in court.
Eventually, the Authors Guild and Romance Writers of America filed suit against her trademarking a common word, and won their challenge, with the judge ruling that Hopkins’ desired “preliminary injunction censoring the continued publication of various artistic works is unwarranted and unsupported”. With her then deciding to step down from her trademark battle, finally the #CockyGate saga came to an end.
While this particular incident might have ended well, it also reveals that the process through which trademarks are approved allows authors to overstep and try to trademark overly generic phrases, whether intentionally or otherwise. One innovative way to battle this is CockyBot, a twitter bot that automatically finds and tweets fiction-related trademark applications filed from the US Patent and Trademark Office’s database.
For each application, CockyBot tweets out the phrase being trademarked, the status of the application, the documents submitted, and an Amazon search link of products that might be related to the phrase.
While most of the applications seems acceptable, there are the occasional generic terms like “dragon slayer” and “big” also included. Clearly, not everyone has learnt from the Hopkins affair.
However, we need to remember that while the kind of behaviour Hopkins engaged in might be unacceptable, trademarks are an essential part of how creative professionals make it and survive. To ensure that such incidents don’t repeat, we need a way to ensure that authors can check for similar titles on the market, while not letting frivolous trademarks impede them.
A possible solution is technological. While CockyBot is certainly a step in the right direction, it still relies on human users having to look through the Amazon search list themselves to check if there are any products from other creators containing the word or phrase that’s being trademarked. What we need going forward is a way for authors to check whether the title they are planning to use in already in use, as well as whether it would be violating someone else’s legitimate trademark.
As the number of books hitting the market increases, and new authors try their hand at writing for niche audiences, it is no longer possible for each person to be mentored individually and taught their way about the industry. Luckily, tech solutions like well-crafted automation can be of enormous help to these newcomers, helping them avoid pitfalls that they might not even imagine were problems.