The U.S. romance publishing industry has been roiling over a trademark issue which has been less-than-affectionately referred to as Cockygate. According to various reports, romance writer Faleena Hopkins has been asserting a trademark she registered to prevent use of the word “Cocky” in titles of adult romance novels.
In recent weeks, the U.S. romance publishing industry has been roiling over a trademark issue which has been less-than-affectionately referred to as Cockygate. According to various news reports, romance writer Faleena Hopkins has been asserting a trademark she registered with the U.S. Patent and Trademark Office to prevent the use of the word “Cocky” in the titles of adult romance novels which have been published by other writers. This trademark policing campaign has sparked public outcry and has prompted action from industry organizations like the Romance Writers of America (RWA), which has consulted with an intellectual property lawyer to seek advice regarding the issue.
Hopkins’ trademark holding company, Hop Hop Productions, currently holds a series of three trademarks which have been registered with the USPTO. These include:
- U.S. Trademark Registration No. 5447836, which covers the use of the standard character mark “COCKY” for use in commerce on a series of books or downloadable e-books in the field of romance.
- U.S. Trademark Registration No. 5458137, which covers the use of a stylized “COCKY” lettering on a series of books or e-books in the romance genre.
- U.S. Trademark Registration No. 5447837, which covers the use of the standard character mark “COCKER BROTHERS” for use in commerce on a series of romance books or e-books.
It’s the ‘836 registered trademark which has been at issue during the Cockygate affair. Romance writers who have been contacted by Hopkins regarding their use of the world “Cocky” in the titles of their novels have gone public with their concerns and published cease-and-desist notifications which have been sent by Hopkins. The “Cocky” trademark has been asserted in cease-and-desist efforts against novels with titles such as Cocky Cowboy, Mr Cocky and Cocky Fiancé. According to information published online by the RWA, although Amazon had been responding to takedown notices for these novels, the e-commerce platform has since reinstated previously removed titles and will not remove titles until legal matters have been resolved.
These legal matters include a formal opposition of the ‘836 trademark which has been filed by Kevin Kneupper, an author of romance books and a retired lawyer, with the Trademark Trial and Appeal Board (TTAB) back on May 6th. Kneupper’s opposition notes that, while he has not published books with “Cocky” in the title, he has described characters in his books as such and may use the term in marketing materials and Amazon keywords, giving the petitioner a personal stake in the outcome of the opposition.
Kneupper’s opposition challenges the “COCKY” mark on multiple grounds. First, Kneupper argues that the trademark should be voided because it is generic and descriptive and has been used to describe “alpha male” characters which are often found in romance novels. Further, the mark has been used in multiple romance titles prior to Hopkins’ first use of the mark in commerce, and thus the mark should be voided because of prior use, according to Kneupper’s opposition. Kneupper also contends that Hopkins has committed fraud on the USPTO for registering the mark, contending that Hopkins has not used the “COCKY” mark on printed versions of the books in her Cocker Brother series, the use has only been on e-book versions of those novels. This and other discrepancies, which would have been material to the USPTO’s consideration of how Hopkins was using the mark in commerce, were allegedly not disclosed with the USPTO during the process of registering the trademark.
On May 25th, Faleena Hopkins at Hop Hop Productions filed a suit in the Southern District of New York against both Kneupper and other defendants accused of infringing upon the “COCKY” mark. In a memorandum in support of the plaintiff’s order to show cause for preliminary injunction and temporary restraining order, Hopkins argued that her use of the world “Cocky” in her series of romance novels about the Cocker Brothers goes back to June 2016. In August and November of 2017, one of the defendants published books titled Her Cocky Doctors and Her Cocky Firefighters. This same defendant was allegedly involved in promoting Hopkins’ “Cocky” novel series prior to publishing the allegedly infringing novels. The memorandum also makes reference to the public response which has followed Hopkins’ trademark policing campaign:
“In response to the PLAINTIFFS’ attempts to enforce their trademarks, elements of the indie writing world reacted by banding together, via social media, to publicly object: for example, by using the Twitter hashtag #cockygate… A major objective of the various social media campaigns has simply been to personally smear the reputation of the PLAINTIFFS, as well as the COCKY ROMANCE NOVEL SERIES, and to cause emotional and economic harm.”
Hopkins argues that there have been instances of actual consumer confusion regarding the Her Cocky Doctors and Her Cocky Firefighters novels, which utilize a stylized lettering of the word “Cocky” which could be viewed as similar to the mark protected by the ‘137 registered trademark. Hopkins is seeking an injunction against a different defendant, Jennifer Watson, who is publishing a “Cocktales” series with the specific intent to use sales proceeds to fund legal costs incurred by writers targeted with “Cocky” trademark infringement claims.
Hopkins is also seeking the Southern New York district court to cancel Kneupper’s opposition at the TTAB, alleging that Kneupper has provided no proof of the publication dates of any romance titles using the word “Cocky” which have been prior to Hopkins’ own use. As to Kneupper’s argument at the TTAB that the “Cocky” registration only covers a portion of the title, and as such is insufficient to establish that word as a mark for the series, Hopkins alleges that argument has no merit.
“In [Kneupper]’s world, incorporation of the ‘Star Wars’ trademark in to a title (i.e.: ‘Star Wars: The Force Awakens’) would vitiate protection. Using that logic, a romance novel using the ‘Star Wars’ trademark would also not be an infringing use (e.g.: ‘Star Wars: The Love Awakens’).”
While the social media outcry this trademark issue has created is understandable to an extent, it’s difficult to call this a case of outright trademark bullying given the nature of trademark law. “I think trademark bullying is not so straightforward,” said Andrea Hence Evans, intellectual property lawyer and founder of The Law Firm of Andrea Hence Evans, LLC. “The registered trademark does give you the right to enforce it against others to prevent consumer confusion. But there’s also a misunderstanding in some people who obtain trademarks, immediately go to Google to set keyword alerts and start sending cease-and-desist letters.” As a trademark attorney, Evans said that she cannot blame Hopkins for wanting to maintain a strong trademark, but she also noted that, just because a writer receives a cease-and-desist, it doesn’t necessarily mean that the trademark owner is correct that consumer confusion will occur. “She has the right when she has the trademark to do that, but as many people in that industry use that expression, they can challenge the trademark if it has become merely descriptive. With the rise of social media, such a trademark campaign can backfire because people can immediately go to social media and the issue becomes viral in the blink of an eye. When you begin to enforce trademark rights, it needs to be understood that these documents aren’t confidential. Just because you sent a letter doesn’t mean they can’t post it.”