From Publishing Perspectives:
The Authors Guild 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.
. . . .
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.
Link to the rest at Publishing Perspectives
Is it worth the money as a PR stunt? Will people remember only ‘cocky’ – and go search on Amazon to find her books and purchase them?
Would be interesting to know. Especially if she doesn’t pursue this further.
There was that recent stunt by the author of an unkown YA book being shopped about for a movie… Same questions.
According to Kindle Spy, she’s lost 60% of her daily sales since this started.
Wow, that much? Oh well, she’s getting a lot of support privately through emails.
This is not definitively settled yet, stay tuned. What happened here is an injunction against continued attempts to enforce the “trademark.” An injunction is a legal means to “prevent harm while a case proceeds” – not a ruling on the law. It is simply an opinion by the Court that one of the litigants is unlikely to prevail in the end. Or that the alleged harm from allowing continuance of an action is great enough to suspend it while the party alleging the harm is making its case.
I am hoping that dear Faleena is foolish enough to continue pursuing this, rather than back off (and undoubtedly start whining about “special interests” conspiring to ruin her career). An actual ruling against her on the law would be of far greater value to the writing community.
Writing Observer, I agree.
Publishing Perspectives mischaracterized the rulings of the court. The case ain’t over.
Here is the transcript of the proceedings. I could go through it, but Marc Whipple has already done so here (scroll up to see it all).
One thing I noted is that the plaintiff’s attorney’s presentation of his graphics was so badly misorganized that the confusion it caused came through in the written transcript. If his presentation in this initial hearing is that poor, I have no confidence that he can win at trial, even were the weight of the evidence on his side.
Sorry if the post was confusing.
This isn’t a final decision on the merits, but there is no good news for Hopkins in the court’s ruling. She didn’t receive any favorable decisions from the court. All the rulings the court made went against her.
The case will continue, but you would have difficulty finding very many attorneys who would place a monetary bet on Ms. Hopkins’ ending up winning her case or keeping her trademark.
Unless her lawyer is working at no charge, this first round has cost Ms. Hopkins a healthy amount in legal fees. Depending in part on the defendants’ and third parties’ litigation strategy, there may well be more expensive days like this one.
PG wasn’t at the hearing and will probably not read the transcript, but from the accounts he has read, if Ms. Hopkins shows up in court again, he suspects she might have another attorney.
PG, Marc Whipple noted that the plaintiff’s attorney is a tort/PI lawyer. That means he is accustomed to contingency fee agreements and may well be doing this case on a contingency fee. This may be his first time in a trademark case. That goes a long way toward explaining some of his tactics and his near total lack of organization.
Agree, Antares. It sounds like he’s out of his depth.
I did read the transcript, though I didn’t understand a lot of it. I did notice, though, that Ms Hopkins’s lawyer mixed up trademark and copyright at one point, something that (I assume) no IP lawyer would ever do.
One thing that struck me when I read the transcript is how strong a part Judge Alvin Hellerstein took in the proceedings. I practiced before judges that were laid-back laissez-faire (is he awake?) and others that were in-your-face active. Most fell in the middle between those two extremes. In this appearance, Hellerstein was near the high end of in-your-face active; for example, on page 21, lines 1 & 2 of the transcript when Reuber — attorney for Kneupper — spoke up to point out a mistake in the brief that he penned, Hellerstein cut him off with ‘No. You are out of the case.’ To his credit, Reuber persisted to point out the mistake, but that was the last time he spoke. The judge had made it clear that he did not want to hear any more from him.
That is only one instance of Hellerstein wielding his authority with a heavy hand.
I do not see this case going well for Cardillo, the plaintiff’s attorney, before this judge.
That is pretty much how I expected it to go. I’m not a lawyer, but you don’t have to be to understand every law ever. There is just no way she could ever prove that “Cocky” was associated with her book series in the minds of the public. She sold a lot of books… but not that many. Now, her previous series title, she could easily TM that. I don’t know who gave her the legal advice that this was a good idea, but they should be disbarred.
I don’t know how much this has cost her in fees etc., but the free publicity must be worth at least 10 times as much. I just hope this doesn’t set a precedent for others wanting to gain notoriety this way.
From what I’ve seen shared about the actual emails she sent to authors with “Cocky” titles, she said something like her lawyer told her she’d win against them and would be able to take all the money the other author has made from their own “Cocky” book. So maybe she was lying, or maybe her lawyer really did say that. If so, one wonders.
Sad it had to go that far …
Sadly I don’t have any ‘cocky’ titles so didn’t get any nasty-grams from her – it would have been interesting to see what she’d try if a lawyer friend of mine replied showing how her threats were illegal and sending her a bill for the lawyer’s wasted time – and the charges that would be applied if ‘she’ didn’t pay it. 😉
(why yes, I am a dreamer …)