Judge Cock(y)blocks Author Faleena Hopkins' Demand Other Authors Stop Using The Word 'Cocky' In Their Titles

from the 40-percent-decrease-in-cocksureness dept

Romance novelist Faleena Hopkins recently turned the rest of the genre against her by deciding — with the USPTO’s blessing — she was the only person who could use the word “cocky” in a book title. Given the nature of romance novels, the striking of the word “cocky” left precious few terms capable of describing a certain blend of bravado and sexual prowess.

The backlash was not only immediate, but thorough. Authors hit with cease-and-desist notices posted these to social media. One writer filed a petition with the USPTO to have the recently-acquired trademark invalidated. To top everything off, the Authors Guild of America joined forces with two of the authors Hopkins sued. What Hopkins likely felt would be an easy win in a trademark infringement case is turning into another cautionary tale about questionable IP and heavy-handed enforcement.

As The Guardian reports, Hopkins has already been handed a loss in her lawsuit against author Tara Crescent and publicist Jennifer Watson.

In the case, heard in a New York court on Friday, judge Alvin Hellerstein described romance readers as “sophisticated purchasers” unlikely to be confused between different authors’ books, found that cocky was a “weak trademark”, and denied Hopkins’s motion for a preliminary injunction and temporary restraining order to stop the publication of books with the word “cocky” in the title.

The lawsuit isn’t dead, but authors are still free to use the word “cocky” in book titles until everything’s settled. The oral arguments [PDF] suggest the judge doesn’t find Hopkins trademark arguments persuasive. Instead, the judge points out any restraining order would cause damage to the people Hopkins is suing, far outweighing anything Hopkins might suffer if other “cocky” products remain on the market.

[I]t seems to me that defendant, who is on the market with her romance novels, if restrained, would also suffer damage and it would be irreparable. If a book is taken off the market, it can’t be sold. Books of this nature have to do with timeliness as well. So I can’t say that there is any balance here. If there is, it is likely to tip in defendants’ favor because a good portion of injury by the plaintiff would be compensable in damages and captured profits. So that factor is in favor of defendant.

Whether an injunction is in the public interest, given the way these trademarks are used, I don’t think there is much of a public interest in them.

Here plaintiff can’t demonstrate that its trademark merits protection, nor in my opinion that defendant’s use of a similar mark is likely to cause consumer confusion. Those are the eight factors that we just talked about. Accordingly, the motion for a TRO and for a preliminary injunction is denied.

And there’s this, which has nothing to say about the merits of the case, but does provide a brief glimpse of the intersection of the court of public opinion and the US federal court system.

THE COURT: You present in your papers about a dozen instances of prior use of “Cocky” in a title: Bite Me Cocky; A Little Bit Cocky; The Cocky Cowboy; Cocky Balls Boa, described as an erotic parody; Cocky Cowboys; Cocky SWATS; Cocky: A Stepbrother Romance; Cocky: A Cowboy Stepbrother Romance; and so on.

MR. REUBER: Your Honor, if I may?

THE COURT: No. You are out of the case.

MR. REUBER: I understand, your Honor. But I penned the brief, and there is an error that my client alerted me to this morning in the brief. Specifically, it is first one you just read, Bite Me Cocky, published in 2012. He has learned that that title may have changed as a result of the Cockygate sort of disputes. It might have been originally published as Bite Me and not Bite Me Cocky. I just wanted to point that out.

THE COURT: Originally Bite Me, then it became Bite Me Cocky?

MR. REUBER: Yes, your Honor. That was our understanding.

THE COURT: What is the explanation for the change?

MR. REUBER: As a protest, effectively. That is our best guess.

THE COURT: In response to the protest, he added the word “Cocky”?

MR. REUBER: In response to Cockygate registrations, yes, we believe the author added the word “Cocky” as a protest. That is pure supposition on our part, your Honor. We have only been doing this for about 48 hours.

The challenge of the trademark continues, as is noted at the USPTO website. If everything continues down this road, Faleena Hopkins won’t have any trademarks to bully people with, much less a lawsuit victory to justify her bullying behavior.

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Comments on “Judge Cock(y)blocks Author Faleena Hopkins' Demand Other Authors Stop Using The Word 'Cocky' In Their Titles”

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Anonymous Hero says:

More to this story

It’s nice to see this ridiculous Trademark is getting trashed.

There’s another part to this story beyond stupid trademark laws: Amazon’s initial reaction to the trademark infringement notices.

Hopkins (more likely, her lawyers) notified Amazon of “infringing” books, and Amazon immediately removed them from its store without investigation.

Authors of these “infringing” works more or less woke up to see their books were removed without warning.

As a result, some authors re-titled their books to get them back on the Amazon store. Re-titling a book involves a lot more than just changing a few words on a cover page.

The book may have to be re-titled on multiple online stores, websites/marketing have to be updated, cover art may have to be updated, and I have no idea what would happen to print editions of these “infringing” books. That’s all in addition to sales that are lost as a result of all the re-branding and time removed from Amazon’s store.

BernardoVerda (profile) says:

Re: Re:

I don’t recall that one, but I do remember when Microsoft tried to sue a Linux distribution for using the name Lindows on the ground that this infringed their "Windows" trademark.

IIEC, the court decided that "Windows" is (especially in desktop computing) a rather generic term, and thus that the trademark was rather weak. Microsoft now had to deal with the possibility that the court might declare the Windows trademark "generic" and invalid.

Windows ended up offering a settlement deal to the Lindows corp:

  • Microsoft acquired the Lindows trademark,
  • the former Lindows was renamed Linspire
  • and Microsoft paid Lindows $20 million for its trouble.
jonr (profile) says:

This show will last a long time...

The schedule going forward is … leisurely, would be a good word:

Time to Answer 6/23/2018

Plaintiff’s Pretrial Disclosures Due 3/5/2019

Request for Oral Hearing (optional) Due 11/25/2019

And then, presumably, the hearing itself would come some time in 2020. This could be more protracted than the monkey selfie case, unless someone comes to their senses in the meantime.

anaon says:

Re: Re: Re:

according to boing boing article:

An entity called "MSE Media LLC," registered to a private residence in Austin, Texas and listing the email address of Austin IP lawyer Tim D. Chheda as a contact email has filed an application to trademark "DRAGON SLAYER" in connection with fantasy novels.

The application lists a series of self-described "pulp harem fantasies" by Michael-Scott Earle, published by MSE Media LLC, as evidence of the mark’s use in connection with a "Downloadable series of fiction books," Class 009.

jonr (profile) says:


Just came back to this and discovered that Hopkins backed down. If you click on the USPTO link in the article you’ll see that the author has surrendered the trademark on Cocky; a quick search turns up, among others, this article confirming an amicable settlement. (Or, somewhat more comprehensive, but much more annoyingly formatted, this article.)

Hopkins has an official statement video which kind of shows that she doesn’t really get why she came under attack.

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