Romance Novelist Secures Trademark For Word 'Cocky,' Begins Beating Other Novelists Over The Head With It

from the internet-throws-bone-to-commenters dept

Over the weekend, the unlikeliest of hashtags began to draw attention on Twitter: #cockygate. There are a million places one’s mind could go without further information, but most would only be partially correct. It appears a romance novel writer, Faleena Hopkins, decided her recently-registered trademark should be wielded as a weapon against any other author using the word “cocky” in the the title of their books.

Writer Jamila Jasper apparently was apparently one of the first to receive a cease-and-desist from Hopkins. Here’s the legal threat in all of its misinformed glory.

My name is Faleena Hopkins, author of the Cocker Brothers, The Cocky® Series.

The Federal Trademark Commission has granted me the official registered trademark of the word/mark “Cocky” in relation to romance books, no matter the font.

Trademark Registration number: 5447836

I am writing to you out of professional respect so that you may rename your book “Cocky Cowboy” which shares the same title as my book, and republish all the versions (ebook, paperback and audible) on Amazon to keep your ratings and money earned.

My attorney at Morris Yorn Entertainment Law has advised me that if I sue you I will win all the monies you have earned on this title, plus lawyer fees will be paid by you as well.

I will do that — but I’d rather give you the option.

I have had this series established since June 16, 2016 and I take all of the hard work I put into establishing it, very seriously.

Your hard work I also take seriously.

You have the opportunity to adjust, rename, and republish before taking further action. You can do so on Amazon without losing reviews.

So… there’s a lot to unpack here, starting with the nonexistent “Federal Trademark Commission.” (Grants come from the US Patent & Trademark Office — a fact you’d think someone with a registered trademark would know.)

Also: making a blanket statement about how total and complete your victory will be in court isn’t the sort of statement good lawyers make or encourage their clients to make. It appears Morris Yorn handled the filing of the trademark registrations for Hopkins, but its involvement with this legal threat has yet to be verified. This certainly doesn’t sound like the sort of advice entertainment lawyers would give someone who doesn’t even appear to know the USPTO’s proper name.

While it’s true Hopkins does have a registered trademark for the word “cocky,” it only covers “series of books in the field of romance.” Hopkins cannot sue people for merely using the word “cocky” in a book title. It only restricts others from publishing a “cocky” series of books in one particular genre. For a very nuanced breakdown of how trademark registrations work in cases like these, IP lawyer Marc Whipple’s blog post on the subject is well worth reading. But it all boils down to this:

Final issue: 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.

It took me about seventeen seconds to locate several romance books on Amazon with the word “Cocky” in their titles which were published before the alleged first use in commerce of the mark by HHP. (In fact, I found what is arguably a series of books using the mark to identify a series, which makes the registration itself sort of iffy, but that’s a separate issue.) So for this reason as well, if in fact the publishing company and/or its attorneys are representing that using the word “Cocky” in the title of a book infringes the trademark, they are likely in error. Or, at least, any attempt to enforce the trademark against such goods would likely open the trademark registration up to attack and potential invalidation on the grounds of prior use and/or lack of distinctiveness.

The longer this “gate” has gone on, the more it’s produced discoveries and developments that push Faleena Hopkins further and further away from the legal victories she appears to believe are only a legal filing away. The font (produced by Set Sail Studios) used by Hopkins in her registered trademark apparently cannot be used that way. The designer of the font says he’s not given anyone permission to trademark a design using the font and no fonts licensed by the company contain these permissions.

Her “cocky” trademarks are now being formally challenged. Another writer, Kevin Kneupper, is petitioning the USPTO to cancel the trademarks it handed to Hopkins. It’s a long shot, but his filing [PDF] alleges Hopkins defrauded the USPTO during the application process.

Petitioner seeks to cancel the Registration on the ground that, on information and belief, it was obtained as a result of knowingly false statements about the ownership and use of the Mark, which were made with the intent to deceive the USPTO and constitute fraud on the USPTO.

[…]

[W]ebsites such as Goodreads refer to the book series as being titled “The Cocker Brothers of Atlanta.” The e-book specimens in Registrant’s application use both this title and the title “Cocker Brothers, The Cocky Series.” The print specimens in Registrant’s application, by contrast, use only the title “Cocker Brothers” for the series. Registrant’s application does not explain these discrepancies and various titles or provide dates for when the “Cocky Series” title was first applied to the series.

On information and belief, at some point in time Registrant has changed the title of the series (and appears to have done so multiple times). On information and belief, Registrant intentionally withheld information from the Patent and Trademark Office regarding these changes to the series title with intent to deceive the USPTO.

A change to the series title would be material to the question of whether and how the term “cocky” was used by Registrant in commerce, as well as to the priority date of Registrant’s trademark, which is currently claimed to the date of first publication of the first book.

This is all the result of someone drastically, and perhaps purposely, misunderstanding the protections granted to her by the USPTO. But rather than reconsider her actions, Faleena Hopkins still believes she’s in the right. Not only that, she’s now the “victim,” thanks to backlash she caused by sending out bogus legal threats to writers she hoped knew even less about trademark law than she does. Apparently, a few writers have already complied with her ridiculous (and legally-incorrect) demands.

Jamile Jasper — the one targeted in the C&D at the beginning of the post — has also changed her book title as a result of Hopkins’ legal threats. But it probably won’t make Hopkins feel any better. “Cocky Cowboy” — the alleged trademark violator — is now “The Cockiest Cowboy to Have Ever Cocked.”

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Comments on “Romance Novelist Secures Trademark For Word 'Cocky,' Begins Beating Other Novelists Over The Head With It”

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95 Comments
Nate says:

“It appears Morris Yorn handled the filing of the trademark registrations for Hopkins, but its involvement with this legal threat has yet to be verified.”

I seriously doubt it. A different attorney was listed on the two trademark applications. And I’m pretty sure Morris Korn would have caught the detail that the scripted trademark used a font with a license which forbid trademarks.

I think she was name-dropping a lawfirm that sounded scary but she hadn’t hired.

That One Guy (profile) says:

Re: Re:

I think she was name-dropping a lawfirm that sounded scary but she hadn’t hired.

Name-dropping a group of lawyers to try to seem important, lawyers that you aren’t actually paying and who might take offense at being used like that to threaten people?

Normally I’d give her the benefit of the doubt and say she couldn’t be that stupid, but her actions so far would seem to suggest that yeah, she absolutely could be.

Marc Whipple (user link) says:

Re: Re:

The attorney who filed the trademark registrations has an email address from the Morris Yorn domain and his license lists his business address at the same address the Morris Yorn website gives as their office address.

I agree with the article’s observation that we have no evidence that that attorney or any other Morris Yorn attorney is involved in any of the C&D, etc, but they were almost certainly the firm that helped her file the registrations.

ldd (profile) says:

Re: Fire the USPTO who approved

I initially also thought “fire the examiner!” but I don’t think firing the examiner is going to accomplish anything substantial. At best, some of us may feel some satisfaction that will surely be crushed as soon as, inevitably, another stupid grant from the USPTO makes the rounds in the news.

The USPTO is organized so that it benefits from granting bad trademarks. There’s no practical downside for them. The incentives for granting bad trademarks and bad patents are structural. The examiner was most likely doing exactly what his bosses wanted him to do. Fire him and he’ll be replaced with someone doing exactly the same thing.

Steerpike (profile) says:

Re: Fire the USPTO who approved

How long a word has been around isn’t really relevant. The word “apple” has been around for a long time, and of course it’s a famous trademark as well. What matters is whether “cocky” was properly registered with respect to the specific goods and services identified in the application, and whether the applicant was entitled to the rights.

Stefanie Pratt says:

Re: Re: Fire the USPTO who approved

It is irrelevant what the trademarked word was and/or is… the problem is her misuse of said trademark. She has behaved as a recalcitrant, bratty child who doesn’t want to share the blocks in that she approached the situation saying “Its mine and you can’t have it”. Had she used the trademark in the manner prescribed by the laws, it would have been as a LOGO only. Had she been truly intelligent, she’d have trademarked the phrase “Cocky Brothers Series” or some such. However, she was neither intelligent nor ethical in her handling of the situation.

Deb says:

Re: Re: Re: Fire the USPTO who approved

  1. It seems she has 3 TMs: a. for the word “cocky”, b. The stylized version of the word, and c. For “Cocky Brothers”.

    2. According to the petition, she deceived and committed fraud upon the USPTO. NOT cool. Probably against the law

    3. What is the most disgusting of all is that she uses the naivete of her readers as a shield, claiming they mistakenly purchased the wrong books believing they were purchasing her books. So she says she wanted to protect them. Instead of insinuating your readers are too dumb to either read the cover or inform them of Amazon’s return policy which allows you to return books purchased by mistake, she trademarks the word “cocky”? There must be some nefarious reason to trademark that word and she won’t tell.

    I tweeted to her and asked her if Stephen King, JK Rowling, Diana Gabaldon or George RR Martin have trademarked a word from any of their novels. After all, they’ve all sold billions of books, had at least some of them turned into movies or TV series, and are all wildly popular.

    I’ve yet to receive a response.

That One Guy (profile) says:

Re: Re: Re:2 I can see it

3. What is the most disgusting of all is that she uses the naivete of her readers as a shield, claiming they mistakenly purchased the wrong books believing they were purchasing her books. So she says she wanted to protect them.

Hey, I can totally see it. I mean, I wasn’t aware of the trademark before this article, but as I and everyone else in the world know not a single other author has ever used the word ‘cocky’ in their book titles before she started to do so, so it would make perfect sense that someone could see the word ‘cocky’ and instantly assume that it simply must be from her, with absolutely no time to waste checking the author’s name on the page before hitting ‘Buy now with 1-click’.

The feeling of betrayal that would result from them loading up the book to find it was not one of her literary masterpieces would be absolutely devastating to her loyal fans, and as such it makes perfect sense that she would do her utmost to spare them from such a cruel fate, and for such a selfless act she should be praised, of that there is no doubt.

Anonymous Coward says:

Re: Re: Re:

The USPTO does not, as a matter of course, search external sites like Amazon.com. Initial ex party trademark registration applications are examined only in relation to the USPTO’s database of registered marks and applications for registered marks.

See TMEP §1203: “This provision is not applied in ex parte examination because of the practical difficulties with which an examining attorney is faced in locating “previously used” marks, and determining whether anyone has rights in them and whether they are “not abandoned.””

Anonymous Anonymous Coward (profile) says:

Is it communicable?

What is the name of the infliction acquired by recipients of trademarks? It happens to companies as well as individuals. There must be some diagnosis that is common to singular persons as well as groups of people that explains the insane, inappropriate expression of power. Greed just doesn’t seem to cover it fully.

Berenerd (profile) says:

I was curious, when did the “Cocky” Series come out and when did Cocky Cowboy come out?

First book of the “Cocky Series” came out in June 2016 (there is about 17 novels in this series which leads me to believe there is high quality literature there /sarc)

Cocky Cowboy was September of 2016.

Then you have
“A Noah’s Ark Geography A true account of the travels and adventures of Kit, Jum-Jum and the Cockyolly Bird” published in 1900.
Cocky’s Joy, 2015
I mean seriously, there is an issue with the whole trade mark thing.

Anonymous Coward says:

Re: Re:

That is bloody priceless. Just as watching an interview with members of your favorite band can make you dislike the band from that point forward, this “author” has managed to out herself as deranged and delusional, likely alienating some portion of her fan base. There’s a reason most authors are reclusive, she should have learned from their example.

I sincerely hope this ruins her career.

Anonymous Coward says:

who the fuck gave the copyright on this word to her? surely to all that is common sense, everyone would know this word and many other similar ones have been in circulation for centuries! the person responsible needs to me removed from office after removing the copyright and putting it back into the hands of everyone! what a fucking moron!

Anonymous Hero says:

Possibly Donald Trump

I have a feeling Faleena Hopkins might actually just be Donald Trump. Check out the writing style on her Facebook post.

“THIS IS A WITCH HUNT.

I would NEVER in a million years ask my readers to one-star, and in fact have done THE OPPOSITE many times

LIKE THEY WERE CHILDREN AND NOT GROWN WOMEN.”

All she’s missing is ending the post with, “Remember sailor.”

RomWriter says:

She’s also been reporting books with “cocky” in the title to Amazon and Amazon has been ripping them down from their site. There are screenshots of in on Twitter.

Also misused TMed material in her books without permission.

And she believes she automatically owns character names from her books and there are screenshots of her one-staring other authors’ books on Goodreads because the first name of the character is the same.

The girl is a total train wreck.

Wendy Cockcroft (user link) says:

Re: Re: We should write a book.

…the opportunity of a lifetime was within the grasp of her pudgy little fingers. A fountain of money flowing deep and wide for her alone. All she needed was but one word, and by the magic of trademark (and possibly the power of Greyskull) she could milk the users thereof like cows. A range of possibilities paraded behind her eyelids…

Anonymous Coward says:

Font trademarks

The font (produced by Set Sail Studios) used by Hopkins in her registered trademark apparently cannot be used that way. The designer of the font says he’s not given anyone permission to trademark a design using the font and no fonts licensed by the company contain these permissions.

On what basis would we expect such permission to be required? Fonts can’t be copyrighted and I’ve never heard of this implied "derived trademark" right.

Anonymous Coward says:

Re: Font trademarks

I was wondering this too. Granted, some fonts include code, and that code can be copyrighted, but then the copyright is on the code, not the font itself.

Plus if her claim is accurate that she has the trademark regardless of font, then the font used in the application seems irrelevant. (And if it’s not, then authors of “cocky” romance novels can just use one of the other zillions of fonts in their title, and there’s no issue with her locking down the word.)

DB (profile) says:

Re: Re: Font trademarks

Typically a trademark has multiple elements, all of which need to be present.

This is especially true when the trademark involve a common word, where the font and color are essential elements to be specific/descriptive enough to qualify for trademark protection.

I can register a trademark on ‘The’ if I have a silly enough font. But my trademark doesn’t let me sue the New York Times for using the word thousands of times a day.

Anonymous Coward says:

Re: Re: Re: Font trademarks

United States Copyright Office:
Circular 33: Works Not Protected
by Copyright

Typeface, Fonts, and Lettering

Copyright law does not protect typeface or mere variations of typographical ornamentation or lettering. A typeface is a set of letters, numbers, or other characters with repeating design elements that is intended to be used in composing text or other combinations of characters, including calligraphy. Generally, typeface, fonts, and lettering are building blocks of expression that are used to create works of authorship. The Office cannot register a claim to copyright in typeface or mere variations of typographic ornamentation or lettering, regardless of whether the typeface is commonly used or unique. . . .

Anonymous Coward says:

Re: Re: Re:3 Font trademarks

A font can be protected by copyright; a typeface cannot.

Compendium of U.S. Copyright Office Practices, Chapter 900

906.4 Typeface, Typefont, Lettering, Calligraphy, and Typographic Ornamentation

As a general rule, typeface, typefont, lettering, calligraphy, and typographic ornamentation are
not registrable. 37 C.F.R. § 202.1(a), (e). . . .

The Office may register a computer program that creates or uses certain typeface or typefont designs, but the registration covers only the source code that generates these designs, not the typeface, typefont, lettering, or calligraphy itself. For a general discussion of computer programs that generate typeface designs, see
Chapter 700, Section 723.

(Emphasis added; several hyperlinks omitted.)

Anonymous Coward says:

Re: Re: Re:5 Font trademarks

A “font” is the software that tells the computer how to produce the letters.

Perhaps you should edit the Wikipedia entry for ”Font” to reflect your exact usage of the word.

In metal typesetting, a font was a particular size, weight and style of a typeface. Each font was a matched set of type, one piece (called a "sort") for each glyph, and a typeface consisting of a range of fonts that shared an overall design.

In modern usage, with the advent of digital typography, "font" is frequently synonymous with "typeface". . . .

The Merriam-Webster definition of “ ² Font ”, is, alas!, not quite as malleable.

Definition of font : an assortment or set of type or characters all of one style and sometimes one size

Anonymous Coward says:

Re: Re: Re:8 Font trademarks

Generally compiled to OpenType. Look up that and FontForge on Wikipedia. Letters are normally drawn, not written as source code. Source code would be things like hinting, advanced layout features (ligatures, kerning, small caps etc.), script identification.

Anonymous Coward says:

Re: Re: Re:9 Font trademarks

Source code would be…

In the specific context of the earlier comment citing the Compendium of U.S. Copyright Office Practices, the term “source code” should be interpreted in accord with Chapter 700, and specifically—

  • 721.3 What Is Source Code?
  • 721.4 What Is Object Code?
  • 721.5 Relationship Between Source Code and Object Code

Note specifically in the context of 906.4’s statement, “[T]he registration covers only the source code that generates these designs”, the statment from 721.5, “The U.S. Copyright Office views source code and object code as two representations of the same work.”

The word “work” itself, although not given a standalone definition in 17 USC § 101, should nevertheless be interpreted in light of 17 USC § 102(a)

Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression . . .

Anonymous Tipper says:

Re: Re: Re:8 Font trademarks

Just so that everyone knows, the issue with the font being used in the registering of the Mark when it obviously does not have the permissions to do so is also a matter of UK law.

The artist of the font is a citizen of the UK and thus may put the rights issue into the realm of UK law and handling.

Anonymous Coward says:

Re: Re: Re:9 Font trademarks

… is also a matter of UK law.

The legitimate scope of the limited statutory monopoly that is recognized within the United States is strictly and solely a matter of United States law.

Iow, it’s within the realm of possibility that a UK court might grant a judgment which would be unenforceable in the US as contrary to public policy.

Anonymous Coward says:

Re: Re: Re:3 Font trademarks

Would UK regulations apply …

Would UK regulations apply to demonstrate that it is the established public policy of the United States not to grant or recognize any monopoly in the letters of the alphabet…

Would UK regulations apply to demonstrate that the UK has lost its collective mind —gone completely insane— and its courts ought not be to listened to? It depends.

Anonymous Coward says:

Re: Re: Re:3 Font trademarks

US law doesn’t apply to the font

To proceed entirely without US law, enforcement must take place entirely outside the US.

Look, I think I’m seeing the picture here: This crazy woman creates a huge disturbance laying claim to a word. She goes way outside any reaonable bounds. In the predictable backlash that follows —mob uproar— —hubbub— —reaction— someone else comes in and attempts to gain a monopoly on the letters of the alphabet.

John85851 (profile) says:

The usual formula...

The usual formula is…

Plan A:
1) Get a flimsy copyright.
2) Threaten to sue people who don’t know copyright law or who don’t want to spend the money to defend themselves.
3) Profit… and make more money than actually writing books.

Plan B:
1) Get a flimsy copyright.
2) Threaten to sue people.
3) Receive tons of media attention from actual copyright experts who say this is a bogus copyright and a stupid law suit.
4) Profit from all the media attention. After all, any attention is more attention.

firebird2110 (profile) says:

Re: Re: Possibly getting competent legal advice at last?

Nah, I think she couldn’t cope with the flood of negative feedback and finally, finally realised that it was time to stop digging, or she talked to a lawyer who TOLD her to stop digging. Maybe she hopes that dropping off of social media for a while, until it all blows over, will be enough.

ampersandsrise says:

Re: Re: Re: Possibly getting competent legal advice at last?

She’s definitely dropping off of most social media in the hopes it blows over – she’s apparently said as much in her private facebook fangroup. And for those looking for the video – there’s several copies floating around

DB (profile) says:

What is the possible blow-back from fictionally writing “My attorney at Morris Yorn Entertainment Law has advised me..” in private correspondence?

Presumably they wouldn’t sue at the first use, just send a warning letter. Leaving abusers such as her free to go sequentially through a directory of law firms.

But supposing a firm decided to make an example of her and spend a filing fee — what tort would they allege?

Narcissus (profile) says:

Not advertizing

The writing in the C&D is so bad, it hurts my eyes. It certainly doesn’t convince me to read anything of hers in book form.

I’m surprised there are so many titles with cocky in it. I didn’t know that word was still in general use. It sounds quite old fashioned and childish to me but I’m not a native speaker so there’s that.

boomslang says:

Article is missing something

I hope this comment isn’t too late for the Tim Cushing to read it, but the article is missing something.

At some point in this train wreck, the author (or perhaps her lawyers, I don’t know) sent notices to Amazon about these “infringing” books (even though they were published before the trademark was granted) and Amazon removed those books from their online store. Amazon did not investigate or contact the supposedly-infringing authors before removing them.

Some authors protested and Amazon put the books back in their store, however, those authors still potentially lost money from lost sales when their books were removed by Amazon. Other authors whose books were removed by Amazon went through the process of changing their title and cover art, which costs money (including costs to re-market the book, changes to the authors’ webpages, etc) on top of the sales lost due to Amazon’s removal of the book.

I won’t reveal my source, but it looks like The Guardian has an article that states “Other writers claimed that Hopkins had reported them to Amazon, resulting in their books being taken down from the site.”

The claims are the true.

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