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An Author Gets A Little Too Cocky

The romance genre, like many others, has its conventions – including titles built on suggestive puns. A recent court ruling ensures that authors can keep the word “cocky” in their romance pun toolbox, at least for now.

The Authors Guild and the Romances Writers of America (RWA) joined forces to block a writer from enforcing a trademark on the word “cocky.” Faleena Hopkins, the author in question, claimed exclusive rights to use the word in the title of her romance series. Hopkins had filed for and obtained a trademark to that effect; she subsequently sent letters to other authors demanding that they change their books’ titles and requested that Amazon pull books other than hers if their titles included the word.

U.S. District Judge Alvin Hellerstein, of the Southern District of New York, recently denied Hopkins’ motion for a preliminary injunction and a temporary restraining order to prevent the publication of a collection of stories called “Cocktales: The Cocky Collective,” written by various authors in protest of Hopkins’ actions. Hopkins’ lawsuit cited the book’s publicist, as well Kevin Kneupper (a former lawyer and author who had filed a legal challenge to Hopkins’ copyright) and Tara Crescent (an author who penned another book series that used “cocky” in its titles). The Authors Guild and RWA offered legal assistance to Crescent, who is an Authors Guild member. The guild seldom litigates on the behalf of individual members but stated that it saw this case as broadly important for authors.

Hellerstein, in dismissing the motion for a preliminary injunction, noted that the case was unlikely to succeed on its merits, and I agree. To understand why, it’s worth taking a moment to consider the specifics of both copyright and trademark rules.

A word like “cocky” isn’t copyrightable, because you can't copyright a word or an idea – only an expression of an idea. Words, either real or made up, can be trademarked (band names frequently are), but such trademarks are meant to avoid confusion in the marketplace. Trademark law does not allow authors to trademark individual book titles, only series, and common words cannot be trademarked at all unless the public develops an association with a particular use.

This is because, in the marketplace for books, a title itself doesn’t create confusion. In fact, unrelated works with the same title are not uncommon. If you walk into Barnes & Noble with the title “Winter’s Tale” in hand, presumably you will know whether you want a play by Shakespeare or a 1983 fantasy novel. Or consider the Bible; you could walk out with dozens of different volumes depending on the translation, explanatory material and even cover type you want. (This, in part, is why publishers invest in International Standard Book Numbers.)

So if two authors want to write a book called “The Cocky Cowboy,” I will know I’m getting Jamila Jasper’s book when I ask for Jamila Jasper’s book. As Jasper, who received a letter from Hopkins, pointed out in an interview with Canada’s CBC network, it’s common for romance novels to have the same title, even when they are published at the same time. Regular readers in the genre are unlikely to find this surprising.

“If someone wanted to trademark the word ‘billionaire’ that could really knock out about half the industry,” Jasper observed.

Trademarks are easier to defend in the case of made-up words. If J.K. Rowling wants to trademark “Gryffindor,” I have no objection. Only Rowling or her licensees should be entitled to publish “The Gryffindor Cookbook,” because that word is the product of her hard work and imagination. Even then, the law doesn’t even give her blanket protection. If she allows a trademarked word to become a generalized noun, she loses protection. (Arguably “muggle” is headed that way.) This eventuality is why, as a student journalist, I saw occasional letters from the National Association of Realtors noting that the word “Realtor” is their trademark, and is not a generic term for a real estate agent. Same thing with CFP® and the Certified Financial Planner marks.

Hopkins did not invent the word “cocky” and, as Hellerstein pointed out, her trademark claim to it is weak. She probably had no right to trademark the word at all. But she legitimately applied for the trademark hoping to gain a marketplace benefit. The U.S. Patent and Trademark Office granted the mark to her; whether or not it should have, the fact that it did is hardly her fault.

So I think that calling Hopkins the novelist equivalent of a patent troll is unfair. She did not demand royalties from other writers or sue those whose novels had already been published. She simply took steps to remove their work as competition for her own. It’s a legally aggressive position, but it’s not an outright abusive one. Hopkins is not a demon. She is just another working author in a highly competitive marketplace.

The case isn’t entirely over. Kneupper was removed from the case before Hellerstein’s ruling, and he will be able to continue to challenge Hopkins’ trademark. I think it is likely the trademark will eventually be canceled, and with luck the case will serve as guidance for when a trademark is too generic to stand up to scrutiny.

Unfortunately, our intellectual property system for copyright and trademark does not test the validity of claims prior to government recognition; that process applies only to patents. We know a copyright or trademark is valid and applicable only after litigation. Often the lines are blurred – as in the recent musical copyright infringement case of “Blurred Lines.” The line in this case might have been a little sharper, but give everyone a break. It’s just a story about romance novels. It isn’t a tragedy.

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