Talk about cocky.
If you’re a romance reader like myself, then the chances are you’ve come across a lot of books with the word ‘cocky’ in the title. If there’s one thing the romance world loves more than double-entendres, it’s single-entendres. Penelope Ward and Vi Keeland’s 2015 book Cocky Bastard is arguably the most popular romance novel with the word ‘cocky’ in its title, but other writers like J.D. Hawkins, Sean Ashcroft, Lane Hart, T.L. Smith and Mia Carson have also used it, to name but a few.
Faleena Hopkins seems to be the writer most determined to cash in on the word with her series, titled ‘Cocker Brothers of Atlanta’. With 17 books in the series, Hopkins seems eager to define her work as a brand that can be trademarked. This is nothing special - authors and publishers do it all the time to protect their assets - but Hopkins made the unusual decision not to simply copyright the name of her series, but the word ‘cocky’ itself. And now, she seems to be going after other romance authors who use the word ‘cocky’ in their titles.
Author Bianca Sommerland broke the story on her YouTube channel.
In September 2017, Hopkins and her lawyer filed a trademark for ‘cocky’, but specifically as a word mark. A word mark is usually a text-only logo, like the Coca Cola brand or the logo for the Canadian Government. The typeface is distinct and can be registered as such. In the US, a word mark can be registered as a protected intellectual property, and sometimes the text itself can be too. However, the reasoning for it must be more specific than a general word. For example, you can put the word ‘apple’ in a book title and Tim Cook can’t sue you, but if you try to open up a business under that name, he can and probably will.
Hopkins’s trademark for ‘cocky’, as shown on the US Patent Office database, is for a word mark. She has a specific logo for ‘cocky’ - letters in a distinct stylised form that she can use on covers - and that was registered on May 1st of this year. That’s something you can protect as a brand. If authors want to try and replicate that exact typeface with the word ‘cocky’ in their title, she’d have a case.
But that’s not what she’s been doing. According to multiple sources, Hopkins has been sending copyright notices to authors who have romance novels with the word ‘cocky’ in the title. One author who received such a notice was Nana Malone, author of the book Mr. Cocky.
Then this happened. I HOPE it’s the author thinking she can do this. pic.twitter.com/gErJlBqP3B— Julie Morgan (@JulieMorganBook) May 4, 2018
Marc Whipple, a lawyer, has written a very detailed piece on the legal details of this trademark and whether it holds up.
You (usually) cannot try to claim something as a trademark when someone else was already using it for similar goods, because assuming an association could be formed between those goods and that mark, it has likely already formed in relation to the goods already on the market. And if it hasn’t formed, that is an indication that is is unlikely to form in the first place. In any event, prior use of a trademark almost always preempts attempts by a later user to claim exclusive rights in a mark.
It took me about seventeen seconds to locate several romance books on Amazon with the word “Cocky” in their titles which were published before the alleged first use in commerce of the mark by HHP. (In fact, I found what is arguably a series of books using the mark to identify a series, which makes the registration itself sort of iffy, but that’s a separate issue.) So for this reason as well, if in fact the publishing company and/or its attorneys are representing that using the word “Cocky” in the title of a book infringes the trademark, they are likely in error. Or, at least, any attempt to enforce the trademark against such goods would likely open the trademark registration up to attack and potential invalidation on the grounds of prior use and/or lack of distinctiveness.
Author Jenny Trout received this response from a source regarding the veracity of the trademark.
Siri, show me a romance author who just destroyed her entire career and earned the ill will of anyone who was once her peer. pic.twitter.com/ycrz9w3Bce— 🏳️🌈Jenny Trout (@Jenny_Trout) May 4, 2018
The Romance Writers of America are collecting information to take to an IP lawyer, so if you are an author who has been affected by this, please get in touch with Carol Ritter ([email protected]).
Hopkins took to Twitter to defend herself, mostly by calling other people ‘bullies’, but in her justification for doing what is at best a legally suspect strong-arming of her competition, she said ‘I receive letters from readers who lost money thinking they bought my series. I’m protecting them and that’s what trademarks are meant for.’ Regarding claims she is forcing authors to change titles - and in one reported case, their covers - she said, ‘Copying a series to be found in keywords is the money grab. They keep their money and everything if they retitle. I am taking nothing.’
Because this right here is nonsense, to say the least. pic.twitter.com/gvh1NTZE2q— Kayleigh Donaldson (@Ceilidhann) May 4, 2018
Let’s break this down.
First, it is possible to return a Kindle book if you accidentally bought the wrong one.
Second, it’s a bold-faced lie for Hopkins to claim that her faulty claims of trademark and copyright, scaring authors into making drastic changes, takes and costs nothing. Self-publishing is a major deal in the romance world, and most of its great innovations were pioneered by the community. There are exceptional self-published writers in the romance world, but it’s also a wildly expensive field. You have to pay for your own covers, your own logos, you get your merchandise and marketing materials made, you organise your own audiobook recordings, and so on.
If you’re the author of, say, a book called Cocky Lover, then the chances are you’ve had bookmarks printed out with that title, and merchandise, and logos for a blog tour, and all the marketing sorted out before you even release the book. That costs money, and it can’t just be tossed aside because one author has claimed that she has undisputed ownership to the word ‘cocky’. So yes, Hopkins is taking everything from these authors with threats of lawsuits. Most authors don’t have the financial foundations to properly deal with a threat like that, even if it wouldn’t hold up in court for a second. I believe Hopkins is relying on that, and hoping people will just crumble under the pressure.
Outside of the ‘cocky’ issue, Hopkins has also made other questionable claims.
In a blog post detailing her book cover photoshoots, she said that ‘some… authors were copying me on purpose’ by using the same licensed stock images for their covers. It’s hugely common for both self-published authors and traditional publishers to use the same stock images for their covers, or images from the same batch. It’s cost effective and some images are proven to be good for marketing. Below is my tweet detailing one of many examples.
It's very common for both self-pubbed authors & traditional publishers to use the same images for their covers (or images from the same batch). Nothing shady about it, it's just picking good marketable images. For example… pic.twitter.com/NtBxdiMWJQ— Kayleigh Donaldson (@Ceilidhann) May 4, 2018
This would be unremarkable if it weren’t for Hopkins’ claim that any author who uses similar or the same images, which they would have had to pay for anyway, is purposefully copying her. She claims that readers were upset by seeing other books with the same models. For her to position anyone using the same easy to license images as copycats is ironic, given that one of her covers used an image from the same batch as another, much more popular author, a year after she did.
Hopkins's blog post positions all authors using those same images after herself as knowing copycats. Funny, because here's one of her covers, a year after another bigger author used an image from the same batch. pic.twitter.com/YjHNp4K18h— Kayleigh Donaldson (@Ceilidhann) May 4, 2018
I put this detail in here with the ‘cocky’ stuff because it exemplifies the wider problem with Hopkins’ trademark strategy: Her work is derivative of a popular romance trope, and works within the same parameters that many in the industry do, but she is positioning herself as wholly unique and everyone else in her path as copycats that she has a right to demand changes from.
In a post on a Facebook group, Hopkins further detailed her reasons for the trademark. After calling critics a witch hunt and before quoting Maya Angelou, she says that authors who she goes after ‘keep their books, their reviews, their rankings, and their money, by simply retitling their one book each.’ As we’ve discussed, it’s seldom as easy as just changing one word, and I believe she knows that. She then claims that one author who she demanded a title change from thanked her and said ‘I looked into it and it’s easy’, then had the nerve to claim ‘frankly the new title is BETTER’. She also claimed others are jealous of her, which is always a good defence to mount.
The romance community is vast, varied and often very loving. It’s also chock full of lawyers.
If you are an author who has been affected by Faleena Hopkins’s trademark claims, please get in touch. My DMs are open on Twitter, or you can leave a comment below.
We’ll be following this story as it develops.
(Header image from Goodreads)
UPDATE #1: Jamila Jasper, author of Cocky Cowboy, received this letter from Faleena Hopkins, in which she demanded the title be changed, otherwise ‘if I sue you, I will win all the monies you have earned on this title… I will do that - but I’d rather give you the option.’
UPDATE #2: As noted by Twitter user @the_syki, the font Hopkins has used on her trademarked logo seems to have been purchased from Creative Market. As stated in the terms & conditions, for those who buy this Northwell Alt Regular font, ‘you may not register as a trademark the item.’
If it helps, the font she used for one of her trademarks appears to be Northwell Alt Regular from Creative Market. Their T&Cs specifically say you can’t trademark designs using items purchased from there. Did @SetSailStudios give special permission? #cockygate pic.twitter.com/eO8eWfgs7e— Syki (@the_syki) May 5, 2018
Here’s the Creative Market font…
And, once again, here’s the trademark for Hopkins’s ‘cocky’…
UPDATE #3: Claire Kingsley, the author of Cocky Roommate, was one author who faced Hopkins’s threats of lawsuit for using the word ‘cocky’ in her book title. The paperback edition of her work was pulled from Amazon after Hopkins reported her for trademark violation. Here is the message Kingsley received via Facebook from Hopkins.
Kingsley was kind enough to speak to me, and contextualized Hopkins’s repeated attacks on her:
This is not the first time she’s come after me. When I published my book, she accused me of stealing from her because we had similar book titles. She threatened to report me to Amazon for copyright violation.
When I titled that book, I searched for the title and yes, found many books with the word “Cocky”, as well as the word “Roommate.” Roommate stories and arrogant heroes are standard tropes in romance, and my intent with the series was to use very “tropey” and fun titles. She assumed that I’d seen her work (I hadn’t, I had no idea who she was) and had intentionally copied her… when there are numerous books with those words in the titles. And, it’s not uncommon for books to have the exact same title as another book. It happens. But for reasons I can’t fathom, this led her to believe I’d stolen from her and copied her.
At that point, she didn’t have any legal way to do anything, so she stopped contacting me. Then she hit me with this Trademark thing.
I’m also extremely frustrated because she reported me to Amazon for Trademark violation immediately, without giving me an opportunity to respond. My print book has already been taken down.