Trademark Case: Authors Guild Wins ‘CockyGate’ Court Ruling

In News by Porter Anderson14 Comments

In a court case mounted with the Romance Writers of America, the Authors Guild has prevailed against Faleena Hopkins: The guild says authors can use the word ‘cocky’ in titles.

Image – iStockphoto: Artisteer

By Porter Anderson, Editor-in-Chief | @Porter_Anderson

Joint Effort: Authors Guild and Romance Writers of America

The Authors Guild today (June 1) reports that it has won a court ruling that means writers can continue to sell books with titles that use the word cocky despite a trademark registration owned by author Faleena Hopkins for a romance book series titled “Cocky.”

The Authors Guild and the Romance Writers of America (RWA) worked together in this case of legal advocacy for writers, defending the principle that no one should be able to own exclusive rights to use a common word in book or book series titles.

In ruling against Hopkins—who had claimed exclusive rights to cocky for romance titles—Judge Alvin Hellerstein of the Southern District of New York, the guild tells Publishing Perspectives, stated that he did not believe that Hopkins was likely to succeed on the merits.

Earlier this year, news of Hopkins’ trademarking of the word sparked initial amusement and wise cracks, followed by growing consternation in the American author corps: ‘CockyGate,’ as it was called by writers, began to look quite serious. Not only were authors reportedly taking cocky out of  their titles out of fear of expensive litigation, but it was also said that another author was working to trademark the word forever.

Despite the popularity of the word cocky among authors of romance book titles, the guild says, Hopkins this spring obtained the trademark registration for the word in connection with her series of self-published romance novels, each featuring one of her Cocker Brothers characters.

She then, the guild says, tried to block the sale of books by other romance writers with titles that included the word.

The interpretation of the legal team at the Authors Guild, which is led by executive director Mary Rasenberger, is that no one author should be able to prevent others from using a commonly-used word or phrase in book titles. The law, in the guild’s reading, is clear that an individual title cannot be trademarked—only series titles can—and that common words cannot be trademarked at all unless they develop an association in the minds of the public with a particular source, in this case a single author.

In its court filings, the organization’s extensive argument includes these lines:

“Cockiness (in all its permutations) remains as prevalent in romance novels as the use of stunning, scantily-clad models on their covers.

“As such, consumers are well-accustomed to distinguishing one romance novel from another based on indicia of origin other than stock character traits like ‘beautiful,’ ‘passionate,’ or ‘cocky’; in particular, readers rely on the sine qua non of novel source-identification: the name of the author.

“Against this background, ‘cocky’ could not possibly function as a signifier of a single source in this genre.”

Moreover, the guild points out, Hopkins initially used the series title “The Cocker Brothers” and not “The Cocky Series.”

When Hopkins’ trademark registration was issued in April, Hopkins sent notices to multiple authors, telling them to change the titles of their books and asked Amazon.com to take down all other cocky-titled romance books, not just series.

Initially, the guild says, some authors did feel compelled to change their book titles. That’s when the Authors Guild took action to defend the authors whose books were targeted.

The Process of the Court Challenge

The Guild and the RWA separately requested that Amazon put the books back up, since the trademark claims were disputed, and Amazon promptly complied.

“We opposed the attempt to block publication of a book, arguing that ‘Any order that restricts creative expression in favor of promoting the tenuous (at best) purported rights of a single author is simply contrary to the public interest in freedom of expression.'”Authors Guild

The two groups then jointly hired the Authors Guild’s outside counsel, Cowan Debaets Abrahams & Sheppard, to write a letter to Hopkins on behalf of Tara Crescent, author of another “Cocky” book series. Crescent is an Authors Guild member.

In response, Hopkins filed a lawsuit in the Southern District of New York against three people: Crescent, author and lawyer Kevin Kneupper (who challenged Hopkins’ trademark registration), and book publicist Jennifer Watson.

In filing that suit, Hopkins asked for a temporary restraining order to prevent the May 26 publication of a collection of stories by different authors, entitled Cocktales: The Cocky Collective. (Hopkins incorrectly named publicist Jennifer Watson as the publisher, according to the guild’s report.)

The Guild’s attorneys prevailed in court last Friday, May 25, preventing implementation of the attempted temporary restraining order, then again today in a hearing on Hopkins’ motion for a preliminary injunction.

As the Authors Guild’s administration reports in a prepared statement, “We opposed the attempt to block publication of a book, arguing that ‘Any order that restricts creative expression in favor of promoting the tenuous (at best) purported rights of a single author is simply contrary to the public interest in freedom of expression.'”

Judge Hellerstein agreed and found that Hopkins was not likely to succeed on the merits because the word cocky is a common and weak trademark, there was no evidence of actual confusion, and romance readers are sophisticated consumers—meaning that they are not likely to confuse Hopkins’ and Crescent’s books.

The guild’s court papers are here, filed jointly with attorneys for Kneupper and Watson.

And a point of interest: while the roughly 10,000-member Authors Guild, founded in 1912, seldom litigates on behalf of individual authors, its administration says that it saw this case as an important issue for authors generally.

“Authors should be able to express themselves in their choice of titles,” the guild says in its media messaging late on Friday.

“A single word commonly used in book titles cannot be ‘owned’ by one author. This is especially true when, as here, the word has already been in use by other authors in titles for years.”

About the Author

Porter Anderson

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Porter Anderson is Editor-in-Chief of Publishing Perspectives. He is also co-owner and editor with Jane Friedman of The Hot Sheet, the newsletter for trade and indie authors. He formerly was Associate Editor for The FutureBook, at London's The Bookseller. Anderson has also worked with CNN International, CNN.com, CNN USA, the Village Voice, the Dallas Times Herald, and other media.

Comments

  1. Bravo! A blow against the modern trend towards ‘Enclosure of the Commons’ where companies and individuals seek to seize for themselves what was available to all the people. A very different matter from real private property rights.

  2. Hopkins was clearly overreaching here. When I was director of Penn State University Press, I pursued, and received, trademark registration for “Keystone Books’ as a title for our series of regional books, but I would never have dreamed of going after anyone wanting to use the word “Keystone” in a book title.

  3. Authors aren’t allowed to trademark book titles either. A series title is something different. Had Hopkins tried to TM The Cocker Brothers, I don’t think anyone would have had an issue. But trying to trademarking the English language is not only ridiculous, but dangerous and sets a very bad precedent to infringe on freedom of speech, IMO.

  4. This case is, in fact, ongoing, with discovery to be completed in 90 days and a status conference to be held at that time.

    1. Yes. I mean, it’s a weak case and she’s likely to lose, ultimately, but the reporting that the case has been ‘won’ because the court refused to grant a preliminary injunction is false.

  5. Dear Porter Anderson,

    Umm…What Karen Feist Said.

    xx,
    Faleena Hopkins

    1. So in 90 days, Ms. Hopkins gets a big legal smack in the chops AGAIN. Looking forward to it.

      1. No, that’s just the end of discovery. If it proceeds to trial, it will be some time after that. It can take a while. In the meantime, the cancellation proceeding is moving ahead before the TTAB, but that process also takes a while.

    2. Regardless of your snippy, “Umm”, remark and what happens to the case 90 days from the publication of this article and forever thereafter, all the women in my romance book club will NEVER purchase any of your books or borrow them through Amazon’s Kindle Unlimited. EVER.

      And we are spreading this news throughout associated book clubs and word-of-mouth to friends, families, and co-workers. Go ahead and give us one of your trademark “xx” now and see how far that really gets you with winning your case in the eyes of the romance genre readers.

  6. RWA has struck a win not only for creative expression but for the whole of written communications. The jargon of many niches —business, science, national organizations, LGBTQ+ and other organizations with loose or tight affiliations—depends on specific words to define specific concepts.

    What if the word or phrase was Global Warming? Then no one would be allowed to talk about it, perhaps even forbidden to study it.
    Bottom line
    Genetics
    Force
    Planet
    H1N1
    E. coli O157 or any designation that is common to science would cause confusion, and anyone who published would have meaningless work because of it, and Peer Review would be a shambles.

    This precidence is now tried, and freedom of writing continues to use as precise a language as possible, and we can continue to strive for “freedom” as much as “Andromeda” and “Zero Population Growth” or “ZPG.”

  7. A nasty move on Hopkins part. I had no intention to buy the Cocktales book, but have decided to show my support. Hopkins’ character ensures that I will never buy anything by her or associated with her. Hopefully the Cocktales book continues to shed light on authors who would be so flagrantly underhanded in their desire to promote themselves.

  8. I was sued for my book title, The Forlorned, for Trademark Infringement by a convicted child sex offender–I WON in the U.S.Supreme Court!

  9. What this woman has tried to do is absolutely ridiculous. To appropriate the English language! That much greed and misplaced ambition surely calls for a hefty dose of Karma: I just wish her stupid drive for litigation leaves her bankrupt and no one wants to read her books anymore. Note to self: make sure I do not read any of her books. I do have one already in my kindle as it was free on promotion but I am deleting it straight away.

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