It’s a bad idea to come after romance authors’ favorite double entendres. Unfortunately, Faleena Hopkins, holder of a trademark on the word “cocky” and a shaky understanding of trademark law, fired a bunch of shots and not only missed the mark, but managed to turn her entire industry against her.
Hopkins is the author of a series of romance novels about the “Cocker Brothers” which she has named “The Cocky Series.” Hopkins obtained a trademark for the word “cocky” on April 17, 2018. On May 7, 2018, Kevin Kneupper filed a challenge [pdf] to the trademark. That’s only three weeks, but a lot happened in that time.
Hopkins filed for two trademarks. One is for the word “cocky” in a specific font. The second is just for using the word in a series of books, downloadable and regular, “in the field of romance.” Once Hopkins had that mark, things spiraled.
Authors T.L. Smith and Melissa Jane were contacted by Audible about their upcoming book Cocky Fiancé, telling them they had received a notice that their title was infringing. They then got an email from Hopkins, followed very quickly, they told Vox, by a notice from Amazon about infringement. Seeing that Hopkins did have a registered mark, the two changed their book title to Arrogant Fiancé and ate the cost of the merchandise with Cocky Fiancé printed on it.
They were not alone. Jamila Jasper reported getting a letter for her book Cocky Cowboy, which has since been renamed The Cockiest Cowboy To Have Ever Cocked. Author Tara Crescent, whose Cocky Series predates Hopkins’s, also received a notice from Amazon. Claire Kingsley told Slate that she was contacted by Hopkins last summer, before Hopkins had the trademark, and told to change the title of her Cocky Roommate. And there are many more said to have been contacted and had books removed from Amazon in a kerfuffle known as #cockygate.
It got so bad that the Romance Writers of America (RWA), the trade organization for romance authors, consulted a lawyer about the issue, soliciting information from members. RWA contacted Amazon and got it to stop suspending the books with “cocky” in the title and got it to reverse the removals it had already taken out. And of course, there’s Kneupper’s pending challenge to the trademark.
Hopkins claimed that she’d received complaints from people thinking they’ve bought one of her books when they bought one of these other books. But you can’t get a trademark for a book title, only a series. So single book titles like Cocky Fiancé shouldn’t have been targeted. You’re also not supposed to get a trademark when others have already used your proposed mark (“cocky”) in your market (romance novels). As you might expect, “cocky” was a popular word in romance titles before Hopkins’ series came onto the market. So she should never have received this trademark in the first place.
There’s a lot that went wrong here. Hopkins was able to get a trademark and use it to intimidate authors like T.L. Smith and Melissa Jane into throwing away money to change the title of a book when they didn’t have to. Even when faced with an illegitimate claim, independent authors won’t always have the resources to fight back.
Amazon’s quick draw on suspensions is also very dangerous—and reminiscent of what we see all the time in copyright takedowns. Even though a claim is bogus or based in an overinclusive trademark, creators who don’t have the resources to fight back are still deprived of a large marketplace. If companies like Amazon act unthinkingly in response to infringement claims, even shaky ones, it creates a sledgehammer that is all too simple to wield. And not everyone is going to be lucky enough to generate enough noise to get backup.
In short, what a crock.