Don't get Cocky now.
May 5, 2018 8:04 PM   Subscribe

What happens when a fairly succesful self-published romance author decides to trademark a common word previously used in many of their peers' titles? #Cockygate, that's what.

In a further twist, she applied for a trademark on the word in a specific font-face, which was specifically not permitted by the license of the font.
In a further further twist, Chuck has something to say.
posted by signal (55 comments total) 27 users marked this as a favorite
 
Thanks! This was a really interesting article, especially the two updates. I think Faleena Hopkins has been hoist by her own petard. I'll never understand people who burn through whatever goodwill they had in their community by acting in such bad faith. From what I know of the romance community, they're incredibly loyal and supportive...until an author starts acting like a jerk, at which people are not afraid to call them on their BS.

Also: "The romance community is vast, varied and often very loving. It’s also chock full of lawyers." Ha!
posted by hurdy gurdy girl at 8:28 PM on May 5 [20 favorites]


Sometimes people, upon tasting their first success, become a little too big for their britches and vastly overestimate their own abilities and resources causing problems largely for themselves. There's a word for that I think.
posted by Homo neanderthalensis at 8:34 PM on May 5 [29 favorites]


Hoist by Her Own Petard and A Little Too Big for Their Britches are, incidentally, the first two volumes in my new Cocky Commenter romance series.
posted by Gorgik at 8:40 PM on May 5 [93 favorites]


Geez, what a cocky thug!
posted by Samizdata at 8:43 PM on May 5


This is fascinating. She really doesn't seem to get why everyone's angry at her.
posted by frumiousb at 8:44 PM on May 5 [1 favorite]


Sounds like a half cocked idea.
posted by St. Peepsburg at 8:47 PM on May 5


Being part of Romancelandia while this is going down is interesting, even if I don’t write the kind of books that would use the word “cocky” in their titles - although I am a little tempted to try!

Also if this is a real GoodReads review of hers, it explains...a lot, I think.
posted by angeline at 8:58 PM on May 5 [16 favorites]


Courtney Milan has a fun summary of this with added bonus IP law analysis, as you all knew she would.
posted by jacquilynne at 9:08 PM on May 5 [12 favorites]


So, now we all have to use penisey (is there an "e" in that? I'm not sure.)
posted by HuronBob at 9:11 PM on May 5 [7 favorites]


The amusing part of this story was calling out people for copying her when she was using stock photography, and a licensed font. I am really unclear on how she thinks this works.
posted by bongo_x at 9:11 PM on May 5 [13 favorites]


I just clicked on angeline's link, and, well, lol forever if that is real...
posted by hurdy gurdy girl at 9:16 PM on May 5 [2 favorites]


I look forward to Pounded in the Butt by My Own Trademark Abuse
posted by ckape at 9:24 PM on May 5 [49 favorites]


MetaFilter: now we all have to use penisey
posted by Johnny Wallflower at 9:30 PM on May 5 [9 favorites]


or pricky
or schlongy
or putzy
or dicky
or shafty
or willyy... well, maybe not
posted by oneswellfoop at 9:37 PM on May 5 [6 favorites]


In trying to understand WTF with this story I saw Faleena Hopkins capitalizing on the attention with a video announcing her indie film project. It's entertaining because she's, like, answering questions and bantering, but I don't think there's really an interviewer.
posted by Miko at 10:02 PM on May 5 [6 favorites]




I think she should be allowed her trademark, but only if it's printed in Vantablack.
posted by flabdablet at 10:46 PM on May 5 [6 favorites]


Also if this is a real GoodReads review of hers

It is.
posted by hades at 11:35 PM on May 5 [2 favorites]


Also if this is a real GoodReads review of hers

It is.


digging a little deeper, she seems to be a Louisa May Alcott fan.
Also Charles Bukowski.
posted by philip-random at 12:03 AM on May 6


So, now we all have to use penisey (is there an "e" in that? I'm not sure.)

I think that's the wrong cock. Or it's that cock... by extension!

We need a word for acting like a rooster. Roosterian? You know, like that sixties band, Exclamation Mark and the Roosterians. Hmm.
posted by pracowity at 12:12 AM on May 6 [1 favorite]


There's a really good rundown here.
posted by Marky at 12:39 AM on May 6 [4 favorites]


Sounds like the author got too, I don't know, arrogant? No, that's not quite right. Overconfident? Presumptuous? No. Brash, maybe? Egostistical? Conceited? Perhaps swollen-headed? Or hubristic?

There's got to be a word for this.
posted by kyrademon at 2:01 AM on May 6 [36 favorites]


I think this whole cockeyed cockup is purely because she got all carried away and stuff.

Also, more proof the trademark and patent system REALLY needs an overhaul.
posted by Samizdata at 2:17 AM on May 6 [1 favorite]


Also, you know, we need to add a NEW term to the scammer lexicon - "trademark troll". Such lovely alliteration. I am licensing the use of the said term in a CC ShareAlike license for print and electronic format.
posted by Samizdata at 2:25 AM on May 6 [2 favorites]


This author is going to end up written into a half-dozen romance novels as an obnoxious side character with a barely-disguised name... "Halina Fopkins," the woman who threatens to sue everyone she meets.
posted by duffell at 3:57 AM on May 6 [13 favorites]


Maybe I need to dust off that draft of a romance novel I have set at the University of South Carolina and finally finish it.
posted by radwolf76 at 4:23 AM on May 6 [4 favorites]


more proof the trademark and patent system REALLY needs an overhaul

I agree on the desperate need for a fundamental reconsideration of IP law generally, but I think it's also important to recognise this as an access to justice issue, as much as an issue with the particular state of the law. In this case, the evidence is that (a) Hopkins' registration is flawed in all sorts of ways that make it unlikely to be enforceable in most and possibly all cases, and (b) Hopkins is using that flawed registration to bully people whose activities aren't within the intended remit of the trademark (most notably anyone who doesn't have a "cocky" book series). The system as it currently is shouldn't reward people who act in this way, but it frequently does, because people will very often back away from legal threats rather than get the advice they need but can't reasonably afford. Anyone with competent legal representation would be in a good position to see Hopkins off quickly.

Almost any system of laws can be gamed by rich, shameless or aggressive potential litigants. In order to correct for that you need not only well-crafted laws but also things like accessible, comprehensible and affordable court procedures; a decent system of legal aid for civil claims; free non-means tested legal advice for all; basic legal education in schools... I could go on.

While I believe that every legal system in (at least) the Anglosphere needs profound bottom up reform, to create a system designed to be relevant and responsive to the needs of real people, not companies and lawyers, I do think stuff like this sort of shitty trolling also highlights the room for incremental steps towards better access to justice for all.

Obviously the fact that civil legal aid is the vast majority of my living makes me pretty focused on access to justice issues, but I do think it's an increasingly significant problem in our ever more complex world.
posted by howfar at 5:42 AM on May 6 [26 favorites]


I'm curious - this is infuriating, of course, but now that the information is out there, that she doesn't actually have the legal right to do this, is it this case that all anyone has to if she tells them to change their title is just write back, "No," or just ignore her entirely? To what extent can she actually force people to waste time and money responding to her?
posted by pretentious illiterate at 7:36 AM on May 6 [1 favorite]


Can I just remark how amazing it is for Chuck Tingle to be considered a romance writer?
posted by bonehead at 8:11 AM on May 6 [11 favorites]


The links are useful for background, thanks, but as usual, there's a lot of Internet School of Law out there. It's pretty common in copyright, but it gets EVEN WORSE for trademark law. The Courtney Milan thread looks good, but I think that a lot of the people reporting on their direct experiences are getting (and passing on) bad legal advice, or misinterpreting things.
posted by pykrete jungle at 8:16 AM on May 6


Chuck Tingle is really quite romantic. All his books are about proving love. And his Twitter feed makes me happy every time I see it.
posted by Countess Elena at 8:32 AM on May 6 [13 favorites]


While I believe that every legal system in (at least) the Anglosphere needs profound bottom up reform

I see what you did there
posted by chavenet at 8:35 AM on May 6 [6 favorites]


Ha! I must have come over all Tingly for a second.
posted by howfar at 8:46 AM on May 6 [3 favorites]


Chuck Tingle is really quite romantic. All his books are about proving love. And his Twitter feed makes me happy every time I see it.

Yeah, the joy of CT's work is that it (at least in the few stories I've read) manages to be funny, ridiculous, earnestly romantic and actually erotic (depending on what you're into, of course) at the same time.
posted by howfar at 8:50 AM on May 6 [1 favorite]


To what extent can she actually force people to waste time and money responding to her?

The thing to keep in mind is that litigation is expensive, even a simple motion for dismissal or summary judgement potentially costs thousands or tens of thousands of dollars and indie romance novelists probably can't afford to spend much money at all answering a lawsuit. That said, indie romance novelists probably can't afford to spend much money at all filing lawsuits, either, so it's a bit of a game of chicken.

I'm not sure precisely how this works in American law, but in Canadian law, a registered trademark is presumed valid. You can oppose the trademark (easier and cheaper if you do it before the registration is completed) or if someone comes after you, you can defend yourself by demonstrating the invalidity of the trademark before the court. But again, all of that costs money.
posted by jacquilynne at 9:16 AM on May 6 [2 favorites]


My parents once got a letter like this from the Carl Orff estate, and all they did was send a letter back saying that, no, in fact, Carl Orff did not hold the copyright to a text written in the 12th century A.D. They never got bothered again. Admittedly, that was an issue of copyright rather than trademark, so it isn't an exact parallel.
posted by kyrademon at 9:42 AM on May 6 [7 favorites]


And never mind that you can stir up a lot of shit as a pro se litigant, and even with the benefit of profound judicial skepticism, your remedies are somewhat limited.
posted by wotsac at 10:17 AM on May 6


this is infuriating, of course,

Did you mean amusing?
posted by bongo_x at 10:45 AM on May 6


It is literally wrong???
posted by Burn_IT at 11:33 AM on May 6 [1 favorite]


> howfar:
"I agree on the desperate need for a fundamental reconsideration of IP law generally, but I think it's also important to recognise this as an access to justice issue, as much as an issue with the particular state of the law. In this case, the evidence is that (a) Hopkins' registration is flawed in all sorts of ways that make it unlikely to be enforceable in most and possibly all cases, and (b) Hopkins is using that flawed registration to bully people whose activities aren't within the intended remit of the trademark (most notably anyone who doesn't have a "cocky" book series). The system as it currently is shouldn't reward people who act in this way, but it frequently does, because people will very often back away from legal threats rather than get the advice they need but can't reasonably afford. Anyone with competent legal representation would be in a good position to see Hopkins off quickly.

Almost any system of laws can be gamed by rich, shameless or aggressive potential litigants. In order to correct for that you need not only well-crafted laws but also things like accessible, comprehensible and affordable court procedures; a decent system of legal aid for civil claims; free non-means tested legal advice for all; basic legal education in schools... I could go on.

While I believe that every legal system in (at least) the Anglosphere needs profound bottom up reform, to create a system designed to be relevant and responsive to the needs of real people, not companies and lawyers, I do think stuff like this sort of shitty trolling also highlights the room for incremental steps towards better access to justice for all.

Obviously the fact that civil legal aid is the vast majority of my living makes me pretty focused on access to justice issues, but I do think it's an increasingly significant problem in our ever more complex world."


Agreed indeed, but I prefer to stop the problem at the source. If an Australian lawyer hadn't been able to patent the wheel a while back (as a point, and, yes it WAS Australia, but I could see the same happening in the US) I would feel differently. Why should we spend money on lawyers and courts to make up for sloppy processing? Why not nip it in the bud? (Which makes it so much easier for the less wealthy).
posted by Samizdata at 12:21 PM on May 6 [1 favorite]


I've never understood how this works for titles. It seems pretty common for multiple books to have the same title. Like there are dozens of books called The Third Way.
posted by straight at 2:23 PM on May 6 [1 favorite]


Pretty tempted to license the same art and fonts and start my Corky series.
posted by bongo_x at 3:36 PM on May 6 [6 favorites]


I've never understood how this works for titles. It seems pretty common for multiple books to have the same title. Like there are dozens of books called The Third Way.

The link that Marky shared above contains a link to the U.S. Patent and Trademark Office's Trademark Manual of Examining Procedure, which states (with citations) that the title of a single creative work isn't capable of being trademarked in the US.
posted by howfar at 5:01 PM on May 6


Just wait until she discovers maritime law
posted by OverlappingElvis at 5:39 PM on May 6 [6 favorites]


Just wait until she discovers maritime law

That raises the worrying possibility that she might convene a kangaroo court and try to execute dozens of romance novelists for piracy.
posted by howfar at 6:26 PM on May 6 [2 favorites]


> howfar:
"Just wait until she discovers maritime law

That raises the worrying possibility that she might convene a kangaroo court and try to execute dozens of romance novelists for piracy."


But she has no yardarm for hanging and keelhauling is RIGHT out.
posted by Samizdata at 6:47 PM on May 6 [1 favorite]


That raises the worrying possibility that she might convene a kangaroo court and try to execute dozens of romance novelists for piracy.

To do so, as a legal matter, she would first need to locate an American flag with a gold fringe in order to convene a Court of Admiralty, by which time the kangaroos would likely have hopped away. Or drowned. I'm not sure it they can swim. Anyway that's just simple maritime law. Everyone knows this. IANAML. IA(Also)NAP.
posted by The Bellman at 7:00 PM on May 6 [8 favorites]


A patent attorney (Kevin Kneupper) has filed a challenge to the Trademark Review Board. The filing is available here. He is litigating this pro-bono, it appears.
posted by SecretAgentSockpuppet at 6:50 AM on May 7 [1 favorite]


Also, if you're a smither of words, and you have a cocker spaniel story you're dying to tell:
Jackie Barbosa Gets Cocky
    THIS IS REAL: THE COCKY COCKERS: 1) Romance, any subgenre 2) Must feature a cocker spaniel 2) ~5k words 3) Due 05/31/18 If interested, email (jackie at http://jackiebarbosa.com ) or DM. I'll edit, get cover art, format, etc. Royalties to legal costs, equally distributed if none.
posted by SecretAgentSockpuppet at 7:06 AM on May 7 [1 favorite]


A patent attorney (Kevin Kneupper) has filed a challenge to the Trademark Review Board. The filing is available here. He is litigating this pro-bono, it appears.

Pro se
, in fact: Kneupper is a romance novelist. The top link in the FPP seems to have been prescient when noting that "The romance community is vast, varied and often very loving. It’s also chock full of lawyers".

I also enjoy the bathos of such paragraphs as the following, amid the solemnity of legal filings:
Numerous romance novels have used “cocky” in their title or series title, many of them predating Registrant’s first publication date of June 16, 2016. And while there appears to be a significant factual issue as to when Registrant in fact began using the term “cocky” in the title to its series, see Count IV, many of these novels were published before any arguable priority date. A non-exhaustive list of these prior works includes: “Cocky Bastard” by Penelope Ward and Vi Keeland (published August 15, 2015); “Cocky Prince” by Jules Barnard (published March 28, 2016); “Cocky: A Stepbrother Baby Romance” by Mia Carson (published August 17, 2015); “Cocky: A Cowboy Stepbrother Romance” by Kaylee Kazarian (published August 12, 2015); “Romance: Cocky Stepbrother: A Billionaire Romance” by Emily Guzman (published November 23, 2015); and “A Cocky Werewolf: A Gay MM Mpreg Werewolf Shifter Romance” by Wolfgang Glasscock (published December 8, 2015).
posted by howfar at 8:29 AM on May 7 [7 favorites]


I'm delighted to note that Cocky Cowboy has returned to Amazon, at a special sale price, as The Cockiest Cowboy Who Ever Cocked.
posted by nicebookrack at 2:12 PM on May 7 [3 favorites]


*The Cockiest Cowboy To Have Ever Cocked
posted by nicebookrack at 2:19 PM on May 7 [1 favorite]


I've been following this story all week via a Facebook friend who regularly posts about the whacky romance novels she reads (especially the supernatural shapeshifter ones) and this morning she posted this:

This is the best thing to happen this week. Please do click on this, examine the cover closely, read the book description, and check out the "Look Inside" feature, particularly the description of the author before the book starts.

posted by goshling at 6:47 AM on May 10 [2 favorites]




Romance writer's bid to stop authors from using word 'cocky' fails in court
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.
posted by Thella at 12:17 AM on June 5 [1 favorite]


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