Updated May 7, 2018 5:29pm EST

This article strives to primarily focus on confirmed events; anything outside of that is merely opinion or suggestion and nothing within is intended as legal advice.

On April 14th, 2018, Romance Author Faleena Hopkins put out a trademark for “Cocky” in what is allegedly an attempt to protect her book series, The Cocker Brothers, from being copied by other authors. On May 1st, 2018 another trademark for “Cocky” was also processed. There are slight differences between the two trademarks, both of which were originally filed for consideration by the Trademark Office on 9/12/2017

We found two Trademarks by Hop Hop Productions, owned by Faleena Hopkins, for “Cocky.” They are linked below.

1. https://trademarks.justia.com/876/04/cocky-87604968.html
2. https://trademarks.justia.com/876/04/cocky-87604348.html

We’re not qualified to advise legally on this issue, however, we will go over the specifics of each trademark below.

The first trademark is for the word cocky in particular typeset (stylized). The trademark page reads:

Illustration: Drawing with word(s)/letter(s)/number(s) in Stylized form Typeset

 

There is ambiguity here in whether this would apply only to this word, in this typeset, in the romance genre, and whether or not it would apply to book titles only or series names only or both. However, speculation over whether this Trademark was created legally is in discussion by authors who claim the typeset she used is from Creative Market and explicitly states the typeset cannot be used in a Trademark or Trademarked Logo.

The Trademark page lists the Goods and Services as “A series of books in the field of romance” and “A series of downloadable e-books in the field of romance” but does not clarify if that means it only applies to series titles in the romance genre, or if that typeset cannot be used on book titles in the romance genre either.

The second trademark is for the word cocky in “standard character” typeset (not stylized). Again the Goods and Services are listed as “A series of books in the field of romance” and “A series of downloadable e-books in the field of romance” but without any clarity in laymen terms of what the Trademark covers.

You will need to speak to a lawyer familiar with Trademark law for more information.

Some have pointed out that this isn’t the original branding Faleena used for her covers. Here is her old typography, which is different from what is displayed on the trademark.

And for reference, here is another “Cocky” romance title published a year prior.

The first book in Faleena’s Cocker Brother Series was published June 16, 2016. Penelope Ward published a book with “Cocky” in the Title in August of 2015.

And here is her current branding, matching the trademark:

 

The big questions regarding what this Trademark is being applied to:

1. Is Faleena only asking those with similar styles of typography/branding using the word “cocky” to change their covers?
2. Is Faleena asking authors with cocky in the series name only to change their title, or is she applying this to individual book titles as well.
3. Is Faleena asking authors with previously published titles to change their titles, or only authors who publish titles with “cocky” after her Trademark registration date.

The answers we have based on her current requests as well as based on Faleena’s own statement.

Here is an example of one title change request that was honored, which should answer questions 1 and 2.

Several other authors have reported being affected in the same way, but have not shared their experience publicly yet due to fear of legal backlash, whether founded or unfounded.

Regarding question number 3, per Faleena, she is only asking authors to change their cover if they published a title in the romance genre with the word cocky in it after her own publication date of her first cocky title. So this is being retroactively to her Trademark date, but not to titles published before her own.

Here is an alleged screenshot of the letter she is sending to authors.

Here is the cover for the title:

You can compare it to Faleena’s branding/style here:

Jamila’s book has been retitled and is available here.

There is the obvious similarity of having the same title; according to Trademark Law:

“Unlike series titles, titles of a single work, whether a book, periodical, song, movie, or television program, normally, will not be protected under either trademark or unfair competition law. This is one of the quirks of trademark law. To quote the USPTO, “Regardless of the actual relation of the title to the book,” courts treat all single title works as “inherently descriptive” at best and “inherently generic” at worst – unless the single title has had “wide promotion and great success.” Source

It would be up to the legal system to determine what constitutes as wide promotion and great success. There are other questions swirling around this issue as well: For example, is there a difference between trademarking “Cocky Cowboy” and being able to stop others from using that exact title, versus trademarking the single word “cocky” as it relates to a romance series and being able to stop people from using “Cocky Cowboy” because it contains the word cocky. And would this impact already published titles?

An IP lawyer who weighed in on this issue stated that, by Trademark law, as this Trademark legally stands currently, Faleena could ask people to change titles that use the word Cocky even if those titles were published before hers. However, Faleena has indicated she has no intention of doing that and to date we have not received any reports contradicting her statement. This information is for clarity in understanding how this works and how other authors could use this in the future.

Here is a list of titles using the word Cocky prior to Faleena’s first Cocky title, in order to give an idea of the usage of this word outside of Faleena (as these other titles might have been what inspired other authors, rather than Faleena’s books). We’ve bolded the titles by Lane Hart, as she had the most titles in a cocky series (4-5 titles) before Faleena’s Cocky Series, including her first title with a character named Jax, so we’re curious if perhaps Lane was the one who turned the word into a trend.

• January 30, 2011: A Little Bit Cocky by Vee Michaels
• March 11, 2014: Cocky Ballsboa by Dionysus K
• December 13, 2014: Cocky Cowboys by J.T. Riggs
• July 7, 2015: Jax – A Cocky Cage Fighter Novel by Lane Hart
• May 16, 2015: My Cocky Stepbrother by Claire Sutcliffe
• July 5, 2015: Cocky Dominant Twin Stepbrothers by Claire Sutcliffe
• August 8, 2015: Cocky by Gary Gray
• August 12, 2015: Cocky by Kaylee Kazarian
• August 15, 2015: Jude – A Cocky Cage Fighter Novel by Lane Hart
• August 15, 2015: Cocky Bastard by Penelope Ward and Vi Keeland
• August 17, 2015: Cocky by Mia Carson
• September 15, 2015: Her Cocky New Cowboy by Susanne Lewis
• September 17, 2015: Cocky Bastard by Raven Stream
• September 23, 2015: Cocky Bastard by Ela James
• November 23, 2015: Cocky Stepbrother by Emily Guzman
• January 3, 2016: My Extremely Hot Stepbrother (A Cocky Billionaire Romance)
• January 16, 2016: Linc –  A Cocky Cage Fighter Novel by Lane Hart
• March 12, 2016: Mace – A Cocky Cage Fighter Novel by Lane Hart
• March 28, 2016: Cocky Prince by Jules Barnard
• April 23, 2016: Cocky F@#ker by Misti Murphy
• June 18, 2016: Senn – A Cocky Cage Fighter Novel by Lane Hart (Technically after Faleena’s, but I’m including it in case it was up for preorder prior to release, since it’s only 2 days later than Faleena’s first Cocky release)

It seems most authors are upset with her trademarking the word Cocky in general in romance titles/series names, rather than her creating a specific Cocky brand to trademark. Some authors suggest the latter is what she did, while other authors are detailing that is not the case.

But what happens when Faleena doesn’t send a Cease an Desist, and goes directly to Amazon instead?

This author claims she was not even given a chance to change her title. Do you think Amazon should get involved, or let the legal system handle this?

Here is what authors are asking:

1. Can other authors Trademark every word they want to use in the genre so no one else in their genre can use that word? Can they Trademark every word in the dictionary within their genre so no one else in their genre can legally publish? Could this be abused as a way to push other authors out of their genres completely?
2. Is this an abuse of the Trademark system? Did this get through by mistake? Would it hold in court?
3. Is Faleena simply misunderstanding how her Trademark can be applied? Should it only apply to series names and not to book titles?
4. And is there a need for big name authors to stop other authors from using a word? Where is the line between trademarking a brand and unsavory business tactics to stop other people in your genre from having freedom of expression?

In another group, one author details allegedly calling the Trademark office and giving them the filing number, and being told that Faleena does have the Trademark and that no one can use COCKY with any spelling in a series title or in a single book title in the romance genre. This man also allegedly suggested the only recourse would be filing a petition to cancel the trade and trial appeal board and that one appeal application with numerous complaints would be best.

There was also allegedly an email from her lawyer to someone who inquired about the situation, who confirmed that authors should not use the word Cocky in their book titles or series names.

Faleena’s lawyer, Jonathan S. Pollack, Esq. allegedly stated that “the word “Cocky” is protected in conjunction with romance novels and any use of the word “Cocky”  which might likely lead the consumers of her books to be confused with a book by that title from another author would be violation of the Lanham act.”

To us, that sounds like you can use Cocky in your title as long as it doesn’t confuse Faleena’s readers, however, we have been unable to confirm if or how Faleena’s readers are confused by use of the word cocky when used by other authors with completely different branding and a different author name. For example, would the book shown above by T.L. Smith and Melissa Jane have confused readers?

Based on this, it would seem (for the time being) that Faleena and her lawyer believe they do have the right to stop people from using this word in both a series name or book title, with or without any specific stylized font.

We recommend calling the Trademark office for yourself to confirm. And while there is speculation you might win if this ever went to court, keep in mind that civil cases can cost tens of thousands of dollars.

Faleena has been on Twitter answering some questions as well. According to Faleena:

• She is not going after anyone who published a book with the word Cocky before her.
• She is going after existing titles that were published before her Trademark took place, if the book was published after her books.
• She recommends authors just change their book covers and book titles if using the word cocky, and says they will still keep their rankings, reviews, and money, so it’s not a big deal.
• She said she did this because readers were accidentally buying other books with the word Cocky in the title, mistaking it for one of her books, and that she just wants to protect those readers from that happening so the readers don’t lose money.

Some authors suggested she could have trademarked “The Cocker Brothers” instead, as that is her series name, and don’t understand why she trademarked the word cocky, rather than the series name, while other authors are suggesting she’s just trying to protect her brand. Some authors suggested they think this is a good idea, which begs the question if they will follow suit. Some have already said they plan on it.

Some struggles authors are facing if they have Cocky in the title:

• Can they afford to have their book cover updated with a new title?
• Are their books being unpublished from Amazon until the update is made, and if so, does this cause loss of rank and a temporary loss of sales? Will they be able to regain traction once they republish?
• If a reader read the book under the old title and seeks it out to leave a review, will it be harder for them to find the book they are looking to review, and if so, will they contact the author for the new link … or skip reviewing due to the inconvenience?

One author stated that she plans to Trademark her own series and thinks it’s a great idea, and a good thing for indies, and compared this situation to the trademark of Harry Potter and how you can’t use Harry Potter in a book title or series name.

Other authors, however, feel like a better comparison would be saying you can’t use the word Harry in a book title or series name, since Cocky itself is not her complete brand name or complete title for any of her books, and a common name not created by her (as opposed to Harry Potter, who is a character that was completed created by JK Rowling.) Some have additionally pointed out that while JK Rowling has the Trademark on Harry Potter, she has taken no action to stop anyone from using Harry Potter references in their book titles or within their books, and has been welcoming of Harry Potter parodies.

Faleena also commented on her Facebook Page to express that she only did this because authors were copying her cover design and the typography, not just the word. We have politely suggested she consider only use her Trademark in response to those titles, rather than all titles using the word Cocky (including those with vastly different branding).

It is our hope that a peaceful solution can be found where Faleena can feel her brand is protected, but where other authors who are not copying her brand won’t have their own brands stripped away from them. In this way, we think it can be a win-win situation for everyone. Ultimately, however, the decision is up to Faleena in so long as the Trademark continues to stand.

Meanwhile, many authors are fearful of what this means for the future of publishing, if left uncontested. What is to stop authors from abusing this as a “technique” to take out their competition?

Authors who have been threatened with legal action by Faleena Hopkins can contact Carol Ritter (carol.ritter@rwa.org) as the RWA is now collecting info to talk to an IP lawyer.

We have heard several reports that Penguin Random House have taken interest in this situation, but have not yet been able to confirm this for ourselves. We will update the article if it becomes relevant.

Additionally, legal advisor Marc Whipple has offered a pro bono consultation to anyone who has been affected by this situation.

Additionally, a former attorney and current author, Kevin Kneupper, is ready to begin the legal process to overturn this issue. You can see his Petition to Cancel the Trademark here.

 

WHAT ELSE YOU CAN DO

• Petition the Trademark office to cancel the Trademark. For a better outcome with the appeal board, you should find one appeal application with numerous complaints. Get more information here.
• Speak up about how you feel about this practice. By speaking up, you make it easier for members of your community to see if an idea is welcome or unwelcome.

WHAT NOT TO DO

• Don’t attack the author personally.
• Don’t one-star Faleena’s books or engage in other retaliatory actions.

There is also a petition here though we are unsure if this will work. It seems the appeal application linked to above is what is needed to overturn this Trademark.

The issue here isn’t who Faleena is as a person. She made a business choice, but unfortunately, her business choice limits the business choices of others. If you look at her reasons for why she made this decision, instead of attacking her for how she chose to handle it, consider offering her alternatives: ways she can still protect her branding, but without hurting other authors.

Failing any willingness to be reasonable, look into what legal measures are available, while keeping in mind that retaliatory actions against Faleena as a person will reflect poorly on you during a legal case, which is another reason not to engage the situation in that way. Stay focused on your issue with the Trademark application, rather than Faleena as a person.

Legal Inspiration also has a great article on this subject.

Do you think Trademarking a word in this way is a slippery slope for authors and the book community in general?

 

Disclaimer: We will be updating this post as necessary to keep it current and accurate without inclusion of rumors, and strongly discourage any personal attacks or retaliatory actions against Faleena. Let’s stay focused on the issue of concern and not tear anyone down or attack anyone’s character. While many people may not agree with her decision and may be working to get the Trademark removed, that can be done without making assumptions about Faleena as a person. She’s a human being, and many people have enjoyed her books as well as her as a person over the years. She made a business decision, and other authors can make business decisions in return, but the best thing for the community is to work together for a resolution, not to work together to tear someone down. Thanks!