A few times a year, somewhere in America, someone decides it is time to trademark something absurd. By most standards this is an expensive process, and requires a lawyer who will go along with the notion the word is exclusive in some purview. It also requires a good measure of hubris and a willingness to be predatory. A while back it was “Face™” then it was the word “Candy®.” This week’s example, I’m sorry to report, is the word “Cocky®.”
Faleena Hopkins, an author of self-published romance novels applied in September for the trademark on the word “Cocky®” both as a specific logo and, more absurdly in connection with the title of any romance novel. It was granted a few weeks back.
If one cares to research it, one will find plenty of similar titles by other authors who used the word both before the filing and before Faleena Hopkins ever published her works.
Let me demonstrate how absurd this is. Hopkins has forced Adele Hart to change her 2017 title “My Cocky Cowboy” to “My Crazy Cowboy,” because the title was too similar to Hopkins own 2017 publication, “Cocky Cowboy.” However, Hopkins appears untroubled that she named her book so similarly to J.T. Riggs 2014 title “Cocky Cowboys.”
Keep in mind that one of the important features of trademark is to prevent people from capitalizing on confusion in the marketplace. In the self-published romance market, there are thousands upon thousands of nearly indistinguishable titles, many of which use the similar, or even the same stock photos of a ripped, shirtless torso, and a few words to convey which sub-genre the titles rests in. For someone who is presumably deeply concerned about confusion in the marketplace, Hopkins has changed the cover of her own “Cocky Cowboy” at least three times.
Let me be clear, I never thought I’d be talking about cocky cowboys. I’m not into Westerns, but this is where we are. That being said, Jamila Jasper deserves some kind of prize for responding to Hopkins by changing the title of her “Cocky Cowboy” novel to “The Cockiest Cowboy to ever have Cocked.”
How was this trademark granted? With no challenge offered when the registration was published for opposition, the examiner at the office of trademark wouldn’t have any reason to deny the application. Keep in mind that when the trademark was published for opposition, no one using the word “Cocky®” on the cover of their romance novel was notified. That didn’t happen until, almost immediately after the mark was granted, Ms. Hopkins began issuing demands from other authors to re-title or remove their works. All of these authors just happen to be her competition. I think that tells us a lot about her goals.
Imagine for a moment that a romance author decided to trademark the word, “Love” or “Husband” or “Steamy.” Or, imagine if I decided to trademark the phrase “All Rights Reserved” in all matters pertaining to publishing. Would I not be within my legal rights to request all titles with that phrase be withdrawn from publication? (The answer is no, I wouldn’t be. It’s absurd.)
I have little doubt the trademark will be challenged and Ms. Hopkins will lose it — but not before plenty of harm is done. Several authors have already had their books removed from Amazon — the only eco-system where many of these titles exist. Others, as mentioned above, have been forced to change their book titles and cover art.
Despite many people on twitter forecasting that these actions will end Ms. Hopkin’s career, I don’t agree. Ending the career of a self-published author hardly seems possible. It isn’t as if her publisher will step in. I suspect she will be well served, having stirred up no small amount of publicity for herself. When controversy happens, people rage buy on both sides of the issue. She will benefit, as might a few of her more high-profile victims. But meanwhile, folks with the least means will, as too often happens, lose more income.
Don’t think for a moment this isn’t about privilege. One of the biggest liabilities of a litigious culture such as ours is the way it continually benefits those who can throw money at a lawyer. Someone with means can get a trademark regardless of that trademark’s merits. Having privilege means being able sue, knowing plenty of folks simply can’t afford to defend themselves. Hopkins herself has shown the ugly bemusement of someone above it all. Her Twitter profile refers to being publicly stoned while she eats ice cream. And yet she fails to acknowledge any of her privilege or to recognize the harm she is doing. Instead, in an hour long rant, she claims to be building a brand, as if that justifies anything. But building a brand off a commonly used adjective and then feigning shock that other people are using that common adjective is beyond cocky — it’s disingenuous, profoundly self-serving, and a danger to free speech.