The Continued Tale of Trademarking A Commonly Used Word

I struggled with how to title this post. When I first heard about this whole trademark on the word “Cocky” thing, I was shocked. I didn’t know what to say. Then, after a few days, I grew worried over what this will mean for the future of being a writer because this kind of thing of trademarking commonly used words stifles creativity. Over the past couple of weeks, I became aware of other words that were in the process of being trademarked, and I just shook my head in disbelief this was even happening. Then I found out about someone trying to trademark the word “Forever” yesterday, and that’s when something snapped inside of me. I also heard something about “shifter world” being possibly trademarked, but I didn’t see too much about that. (As a side note, it looks like the author isn’t going to go through with trademarking “Forever” so that’s good.)

But anyway, now I’m mad. It’s taken some time for me to soak in the ramifications of what this whole #cockygate thing really means. It’s not just about the word “Cocky”. It’s not just about Falenna Hopkins. I had no idea who Falenna Hopkins even was until I found out she had trademarked the word “Cocky” and was threatening authors with C&D letters to change their titles just because she doesn’t want other authors to use that word in the title of their books.  Kevin Kneupper sent in a petition to cancel the trademark on the word “Cocky”, so I thought this was all going to go away.

Then this morning, I wake up to the news that Faleena Hopkins (and her company) has gone to a lawyer to take legal action against Kevin Kneupper, Tara Crescent, and Jennifer Watson. Now, I have no legal background at all. I don’t know what a Temporary Restraining Order against Kevin’s Petition of Cancellation means. I also don’t know what this means for Kevin, Tara, or Jennifer.

In my gut, I don’t see how Faleena is going to win this in court. It might be dragged through the courts for a long time. It might get expensive. From what I’ve seen so far, it doesn’t look like she intends to quit. But I don’t think she can prove that she has the sole right to trademark that single word. Again, I don’t have a legal background. All I’m using is common sense. And common sense tells me that this is just crazy.

The reason I’m upset is because this should never have gotten this far to begin with. I can’t imagine why any author would think they can have ownership of a single word that has been used for a long time in the English language. Then this author threatens other authors with C&D letters, and now she’s blown this even further out of the water with legal action. It boggles my mind that this is even happening.

The reason we need to care is because innocent authors are being hurt by this. I have noticed that Faleena hasn’t targeted the big name authors who might have deep pockets to fight back. I love this particular video that Suzan Tisdale, so let me share it with you really quick:

I almost forgot about Faleena going after the Cocktales Anthology. I don’t know enough about how she’s going after the anthology to talk about that particular situation, but here’s a link for more information on the anthology itself. I watched the video at the bottom of the post that I just linked to, and I agree that this issue is much bigger than the trademark of one word. It is about one author preying on others. If we sit by and let one author silence the rest of us, then our creative expression is in danger.

That’s why I’m making this post. I’m not shocked anymore. I’m not even worried about it anymore. At this point, I’m mad. Sometimes you have to say, “No, this is not appropriate. This isn’t right.” One author should not take one word that is commonly used and forbid others to use it. That is bullying behavior. It’s wrong.

One thing we have going for us in the indie author community is that we understand how precious words are. We use them to touch the lives of our readers. We are blessed by them as we write them. I can think of no other activity I’ve ever done that has fulfilled me as much as writing has, and I think most writers would agree with me. We write because we love it. And I think freedom to write what we want and title our books however we want are extremely important. It’s very encouraging to see how authors are coming together right now. This isn’t just about a single word. It’s really about creative expression. No one should have the right to squash it.

If you would like to buy the Cocktales Anthology, here’s the link for more information about it.  *ALL* net profits will be donated to: 1) Authors already impacted by creative-obstruction (10%), and 2) Romance Writers of America (RWA) (90%) as a general donation intended for their Advocacy Fund. (Disclaimer: This anthology is not being conducted on behalf of RWA, nor does RWA endorse this anthology or effort. They have, however, graciously agreed to accept the funds.)

23 thoughts on “The Continued Tale of Trademarking A Commonly Used Word

  1. Ron Fritsch May 26, 2018 / 9:28 pm

    I used to practice law, but I never worked in the intellectual property area — copyrights, trademarks, patents. But what I’ve read in this area makes me strongly believe the courts won’t side with Hopkins. She must be doing this for publicity.

    • Ruth Ann Nordin May 27, 2018 / 7:43 am

      I’ve been thinking about the argument that she’s doing this for publicity, and maybe that’s the reason for all of this. I can’t imagine why an author would do it to get noticed. It doesn’t seem like all of the negative attention would be worth it, but looking at her sales ranking, it hasn’t seemed to hurt her. So maybe she is gaining something from all of it.

      What I don’t like from all of this is that other authors are starting to jump on this trademark a common word thing. This has the potential to put a lot of innocent authors through a lot of heartache and worry. The landscape of publishing is already tricky with stuff Amazon is doing to KU authors by cutting down page reads because of “suspicious” activities or Amazon suspending or threatening to delete accounts. That seems to be the other big thing in April and this month. Then there are people who take KU books and put them on Apple. The last thing authors need is for common words to get trademarked on top of it all.

      You’ve been around for quite a while, like I have. Remember when it was pretty simple to publish our books without all of this other stuff going on? Sometimes I miss those days.

      • Ron Fritsch May 27, 2018 / 10:57 am

        I agree, Ruth, it all seemed so simple back in those days. Now this — trademarking common words!

  2. rami ungar the writer May 27, 2018 / 12:06 pm

    I’ve been meaning to look up new information on this. Thanks for the update, Ruth.

    • Ruth Ann Nordin May 27, 2018 / 7:34 pm

      I think it’ll all work out in the end, but it’s hard to watch what’s going on in the meantime. I feel bad for the innocent authors who are affected by this.

  3. williamkendall1 May 27, 2018 / 2:10 pm

    In the long run, this is going to seriously backfire on Faleena. What a complete prat.

    • Ruth Ann Nordin May 27, 2018 / 7:45 pm

      Oh, I agree. It will probably take time, but I do think it will backfire on her. I can’t understand why she couldn’t have been happy with what she already had. It looked like she was enjoying a lot of success. Other authors having similar covers or even the same titles wasn’t hurting her, and those things happen all the time in the indie world.

  4. Norma Beishir May 27, 2018 / 2:41 pm

    I didn’t think this sort of trademarking was legally possible. I recall Donald Trump failing at his attempt to trademark “You’re fired” from his TV show days.

    • Ruth Ann Nordin May 27, 2018 / 7:55 pm

      I didn’t, either. That’s why it was hard for me to believe it happened when I first heard about it. I kept thinking I misunderstood what was really going on. It probably explains why I was in shock for so long.

      I heard about Donald Trump trying to trademark that phrase.

      I don’t understand why the Trademark Office would grant a trademark on a common word. You’d think someone would have checked the application and said, “Cocky has been around for centuries and is commonly used in other titles.” But from what others said, they don’t really investigate these things when granting trademarks. I have no idea how the Trademark Office works.

      • piroska May 28, 2018 / 7:31 pm

        It’s a mult-billion dollar a year “business” for the Trademark office, so I don’t think they really care. And if a trademark is challenged or cancelled, or even left to expire, there is no refund.

        • Ruth Ann Nordin May 29, 2018 / 9:43 am

          And if it’s challenged in court, the Trademark office isn’t going to pay those expenses. What a win-win for them.

  5. andrewqgordon June 3, 2018 / 3:28 pm

    I’m not a trademark examiner but a close relative of mine is, so I asked about this. You can’t trademark a word and bar all use of it. You can only trademark a word for a class of goods. i.e. Apple Comp owns the word for Computers, but can’t stop me from using Andrew’s Gala Apples (so long as they’re apples and not computers). Her trademarked (if it’s valid) is for Cocky as used in romance novels only. You could use Cocky in genres other than romance.

    I also learned the trademark for a word for books is limited. As I understand it, you CAN’T trade mark a word or title for an individual BOOK, but you CAN trade mark a word for SERIES. (and then it has to be limited to the genre you are writing in.) So if Cocky is used in every title of her series, she could trade mark that word for the class of books she write in. (romance) Again, as I understand it, that doesn’t mean no one can use Cocky in the title of a book- even a romance book, but no one can use it like she has – .i.e The Cocky {something}. But again, the trademark is for a SERIES and not a specific book title.

    I’m not going into the merits of her claim – I read she didn’t change the title of her books to the Cocky {Noun} until 10 days before she got the trademark. As I understand it, that means she shouldn’t have gotten the mark because she had to show she was using before she applied. So it might not stand up to the petition to dismiss – but I do know that you CAN apply for a trademark on a word if a) you are able to show you are already using it for a particular type of books, b) no one else has a similar use AND c) it is a series. Again, you can’t trade mark a specific book title.

    When you think about it, that does kind of make sense. G.R.R. Martin would want to trademark “Game of Thrones” for fantasy books so I can’t write a book and call it a Game of Thrones Novel. Same for Harry Potter. The problem here is she got a mark for a somewhat common word – Cocky – and then went after people indiscriminately. She tried to stop any use of the word and tried to tell people who used it before her trademark was granted they had to change their titles.

    As I understand it, if I used the word Cocky in a title of a romance book BEFORE she applied for the mark, she can’t make me stop using it even if it was similar – i.e.”The Cocky Trademark Examiner.”. In fact, I might have a good case to have her mark thrown out if I was using it before her. But if her mark is upheld, I don’t think you could write a book called the “Cocky {Noun}” You might be able to write “Man, he was a cocky bastard,” however, because that isn’t the way her series is titled, but that’s not as clear.

    This is a two part problem. The first is ‘Cockygate’ and how it’s playing out. Did she properly get the trademark? Is she enforcing it properly? The bigger question, however, is what happens if this is upheld and people can trademark common words because they call a series that word? Imagine the chaos that will ensue trying to create book titles if hundreds of words get trademarked. You’d have to do a search for every word in your title and if you decide find a word is trademarked, but not in the way you plan to use it, will you get sued and have to rebrand?

    Either way, IF the mark was properly obtained (and I don’t know the answer), then she DOES have a right to enforce her trademark, just like Apple Computer would. Just like a Hollywood studio would. And that is why I think this needs to be addressed by the court or the congress. Then the lawyers will get rich off authors too.

    • Ruth Ann Nordin June 3, 2018 / 4:38 pm

      I really appreciate this comment, especially with how objective this was approached. To be honest, I wasn’t aware of how trademarks worked until this whole thing happened, and I’m still learning about it as I go along.

      There is a book called Cocky Bastard by Penelope Ward and Vi Keeland, and this was out in 2015. It’s in the same genre Faleena applied for the trademark in. Faleena’s first book was out in 2016. So she couldn’t go after Penelope Ward and Vi Keeland for that book’s title, right? That would explain why she didn’t go after them. People have been wondering about that one.

      I have no trouble with a trademark on a series if it’s something very specific. What worries me is that someone might trademark the word “Bride” in the romance genre. I write in romance, and I have used that word in titles and in a series, much like a lot of other romance authors. Like you said, it could end up meaning lots of time looking up trademarked words, and if someone down the road (say a year from the time I published a book) trademarked a word I used, would I have to go back and change it or fight it in court since I used it before them? The whole thing could end up being messy. I understand authors want to protect their work, and I’m all for it, but it seems like there should be a better way of doing this.

      From what I understand, in this particular case, Faleena might not have properly obtained the trademark for the word Cocky itself since there were other authors already using the word in the romance genre. So this wasn’t something unique just to her. She also got a trademark for the word Cocky in a certain font (can’t remember the font off the top of my head, but the creator of the font didn’t give her permission to use it in a trademark). On top of that, originally her series was “Cocker Brothers of Atlanta”. (It’s still listed that way on Goodreads.) She didn’t change the series until later. So she didn’t start out branding her series as “The Cocky Series”. There are screenshots of this floating around Twitter. I think all of that is problematic for Faleena. I know she did a third trademark, and I think it was for “Cocker Brothers”, which I personally don’t have a problem with since it is more specific.

      I think the more specific a trademark is, the better for everyone. I have no problem with the three reasons a trademark can be granted that you listed. Those make sense to me.

      • andrewqgordon June 3, 2018 / 5:39 pm

        Hi Ruth,

        I’m not a trademark lawyer, but I did ask a lot of questions when I had my relative’s ear. As best I understand it, Feleena can’t stop Penelope and Vi from using the title. You don’t have to register a trademark to use it. It costs hundreds of dollars to register a trademark for each class of goods – think, 1) eBook, 2) Audio, 3) Paperback etc – so you might not want to spend the money. But if you were using it first, and no one else trademarked it at the time you used it, I believe you can keep using it. But I don’t think Penelope and Vi could try and trademark it now that someone else has it. Meaning, they can’t go back and say take it from her and give it to us because we used it first.

        As to whether Penelope and Vi can invalidate Feleena’s trademark, I don’t know. But like you, I’d read that she didn’t change the series title from Cocker Brother’s to Cocky until right before she got the trademark. I was told you need to show you are using it already when you apply for the the trademark because you need to provide a specimen (book cover(s) of the books) for the examiner to see before they will approve the mark. So yeah, it might be a big problem to keep the mark, but maybe not. I don’t know trademark laws that well. No one objected during the pendency of the mark and the Trademark office published all pending marks in their journal so people can object. But then what authors troll that journal looking to see if anyone is trying to trademark a common word they use in their title so they can object? I doubt anyone really. That is probably something RWA might need to undertake or Sci-fi writers association etc. It’s all murky to me and best left to lawyers from a publishing house or trade organization to fight out.

        Another thing that is a problem, she has to defend her mark or she loses it. So she has to stop EVERY new use of Cocky in a book title or else it becomes too diluted. So that might be why she has started to go after people. If she doesn’t, she can lose it. Keeping track of all the uses of the word Cocky and then sending C&D letters and if that doesn’t work, filing suit, is a big job. And you need to do it to keep the mark. She might spend more money than her books make just doing that and when will she write more books? It’s one thing for JK Rowling to get trademarks for her billion dollar Harry Potter franchise and then defend the marks. It’s another thing for me to spend the money to trademark the series title for my fantasy series and then spend the time and money to defend it. Maybe she’s hoping to bully folks into submission without spending the money.

        As you pointed out, a TM for “Bride” would be a problem as would a bunch of other words. One thing that gives me hope is that just about every word has been used in a book title. That ought to stop one word marks. Something unique like, “Game of Thrones” for instance, should sail through, as would my ‘Champion of the Gods’ fantasy series. But George R.R. Martin probably can’t trademark “Game” or “Thrones” and I probably can’t trademark “Champion” or “Gods” One word marks should be easy enough to oppose as already in use. Easy enough so long as someone raises the objection before it gets issued.

        This has definitely opened up a new thing for authors to consider – because we didn’t have enough shit to do to make a few dollars off our art.

        Thanks for posting this, it’s a great discussion all around.

        • Ruth Ann Nordin June 10, 2018 / 7:58 pm

          Sorry to get back to this so late. I kept getting distracted with a long list of things to do.

          I never thought I’d see an author trademark anything in a book or series title. I wouldn’t have thought to check the trademark office for pending trademarks. This caught me by surprise. In fact, I first thought I didn’t understand what was really going on, so I did some more investigating. It took me a full week to comprehend what had happened. I’m telling you, once you think you figured the whole publishing landscape out, something changes. It would be helpful is writer organizations took the time to look this stuff over. They would have more clout than a single author if they contacted the trademark office to object to it.

          So if someone came after me and trademarked a word I had used (like Bride) in a title, my book would be okay to stay up as it currently is since I had it out before the trademark went into effect?

          I heard that about people having to defend their trademark in every single instance of violation. How on earth would a single author have that kind of time? I can see JK Rowling having someone do this for her. That makes sense. But a single indie author has so much already on their plate that it doesn’t make sense. I have no intention of doing any trademarks. The thought never even occurred to me to try it.

          A couple of authors on Facebook have been caught trying to trademark some common words that are often used in their genre, and they argue, “I just want to protect my brand. I don’t plan to go after anyone if they violate the trademark.” As you pointed out, they have to go after every single violation or they will lose the trademark. Either they don’t understand the nature of how a trademark work or they’re lying. I’m not sure which is the case since I don’t know them.

          You wrote, “This has definitely opened up a new thing for authors to consider – because we didn’t have enough shit to do to make a few dollars off our art.” I couldn’t have said it better myself!

          • andrewqgordon June 10, 2018 / 10:03 pm

            Hi Ruth,

            As I’ve said before, I’m not a trademark attorney. There is an old saying, “a lawyer’s advice is worth nothing unless paid for,” And I’m not even a trademark attorney so you can see how little my two cents is worth (less than two cents for sure.) That said, here’s my take on your questions:

            1) I believe if you used it first someone can’t swoop in, trade mark the word you’re already using and then force you to change the title. Maybe that’s hopeful thinking on my part, but I think it’s correct. And it would make sense. If you did a diligent search (not that we do, but IF you had) and there is no mark for the word Bride in a romance novel, you’d be free to use it. It would be highly problematic if after you used it lawfully, someone could come in and take it away like that. But, that’s my non-legal understanding.

            2) Defending the mark IS a lot of work. It’s often why folks don’t bother, especially for something that is likely to be common – like words in a book title. You’d need to do daily searches to make sure no one is using your mark. I suspect it would cost more to defend than you’d make on it. Now for Rowling or G.R.R. Martin – sure, you do it. For me? No way.

            3) I’d have to look at these other authors, but the reality is, if the word you’re trying to trademark is already commonly used, the PTO should deny your application. So for instance, If I tried to trademark Billionaire for Romance novels, I should be turned down because of how many people used it in their titles. If I wanted to trademark The Boston Billionaires Club – I probably could do that for a series. So a common word ought to be very hard to trademark. But then, Cocky made it through so what do I know. But using Brides as an example. I suspect you’d be unable to trade make it in total. But suppose you wrote a series with The Bride as the first two words followed by something else. So The Bride of NY, The Bride on the Boat, The Bride in the Limo – etc. That might make it because you are not saying no one can use the word at all, just not the same way as my series is using it – i.e “The Bride….” The bigger issue is going to be if a Nora Roberts decides to trademark common words like Bride – she DOES have the money to defend her marks.

            All in all, Ms Faleena has opened Pandora’s Box and none of us should thank her for it.

            • Ruth Ann Nordin June 17, 2018 / 7:24 pm

              It has opened up Pandora’s Box. A look at CockyBot on Twitter comes up with other words that are being filed to the Trademark Office. It’s crazy. I don’t think putting “The” in front of the word is enough. They need to make it far more unique. If they want to use a certain font for it, fine, but they want the word. This whole thing has blown up all over the place. I think of all the songs that have the same name, and I’m glad the musicians aren’t doing trying to trademark words like the indie author community has started to do. This thing with authors trying to own a single word, even if it has “The” in front of it is insane.

              From what I researched, if an author did use a word on a title before the trademark came on the scene, then they have priority over the word, but they might have to put that in a court battle. If these trademarks get approved for every common word out there, this whole indie publishing thing is going to get messy. Then, the sad thing is that we might be forced to stop publishing unless we have the protection of a publishing house.

              I think some of these authors who are running around to trademark these common words are acting out of fear. They are trying to protect themselves, but I don’t think they understand that readers are drawn to the author’s name much more than a word in their series or titles. Readers are drawn to the author, not words. It’s unfortunate that some authors are now scared enough to try to reserve certain words. I’m sure some aren’t scared but are thinking it’s a smart marketing move, but I don’t see it as a necessary marketing move. I think their name and platform are the key things they should rely on to market their books.

              I hope that by the end of this year, common sense will come back into play so we can all get back to writing without worrying about the words we’re using in a series or book title.

  6. amreade June 4, 2018 / 12:26 pm

    You and Suzan Tisdale nailed it. The thought that any common word could be owned by someone is terrifying and flies in the face of common sense. If this was, in fact, a publicity stunt, my guess it that it’s gone off the rails and Faleena Hopkins has far more damage control to do than she ever imagined. I can only hope this madness stops soon and we can all get back to the legitimate business of writing and selling books. Many thanks for a great post.

    • Ruth Ann Nordin July 14, 2018 / 12:50 pm

      I’m so sorry for not replying sooner! Sometimes I forget to check on the “pending approval” portion of this blog when someone makes a comment.

      I love Suzan Tisdale! She’s such a lovely lady!

      And yes, someone trying to trademark a common word is terrifying. I lost sleep over this. The whole thing could have blown up to hurt the entire indie writer community. I’m glad that most authors understood how dangerous this issue was. Thankfully, most authors are supportive and do what they can to help others. I think when we work together as a community, we’re stronger.

      I agree. Let’s get back to writing and selling our books! 🙂

  7. Stevie Turner June 4, 2018 / 1:08 pm

    Reblogged this on Stevie Turner, Indie Author. and commented:
    I have never heard of anything so ridiculous. The word ‘cocky’ has been used over here in the UK as far back as I can remember. Is there some underhand plot behind all this – possibly a money-making scheme?

    • Ruth Ann Nordin July 14, 2018 / 12:57 pm

      Sorry to get to this so late. I forgot to check the “pending comments” section on this blog.

      The only thing I can think of is that the author who trademarked the word didn’t understand the nature of the writing and publishing business. Our brand is our name. It is our platform. It’s not a word.

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