There are places you can find very detailed explanations of what has occurred. I’ll post a few links but the short version of the *primary* issue is that a romance author, Faleena Hopkins, has been granted a trademark for the word “Cocky” and has been going after indie authors with books with “Cocky” in their title, threatening them with lawsuits and having Amazon remove their books from sales listings. It’s assumed that the Patent & Trademark Office erroneously granted this trademark for a single word that is in common use, and was used by many books for many years prior to this TM which was granted April 27, 2018.
Here is THE BEST explanation of the situation and the implications, and the use of Trademarks, in this article, just published by The Authors Guild; older articles also explain it: Cockygate Explained, on Vox, or this fabulous blog post by Jenny Trout…. which includes a link to the Twitter thread in which she gives us a blow-by-blow account of Faleena’s infamous 1-1/2 hour live FB video (which Faleena then took down before I could see it… phooey!).
If you really have a lot of time and want an eyeful, just browse the hashtag #cockygate and #byefaleena on Twitter!
In interests of keeping this simple, I’m going to try to keep this to the most pertinent points, actions being taken, and updates, as I run across them:
- May 31st. Romance Writers of America has just published an official update of their movement in regards to this issue. Including!!! They voted to fund Tara Crescent’s legal defense! BRAVO to RWA!!!
- May 31st. You can read here the Defendants’ Joint Memo in Opposition (okay the title is a lot longer, I shortened it here) filed with the NY Court today.
- June 1st. As we all wait breathlessly for news from the preliminary hearing which is being held NOW, try reading Faleena Hopkins Reply Memorandum that is…. quite a read. As is her very interesting blog post from yesterday.
- June 1st NEWS FROM COURT! Initially reports coming in from those present say that:
- The judge denied the Temporary Restraining Order (TRO) and the Preliminary Injunction, and Kevin was removed from the lawsuit. His Petition of Cancellation to the PTO will proceed
- The lawsuit against Tara and Jennifer will proceed, but the preliminary injunction against them was denied; they do not have to take down their books as the lawsuit proceeds
- Discovery is set for September 14 at 10 am
- KUDOS to Courtney Milan @courtneymilan for providing us with this Transcript of today’s hearing!
- Motion to Dismiss is going before the Court on June 22nd
- Discovery will end September 7th, with a Status Conference September 14th at 10 am
- Statement issued by The Authors’ Guild on today’s court hearing and the implications.
May 25th. In an incredible, unbelievable twist… Faleena Hopkins is suing Kevin Kneupper, Tara Crescent and Jennifer Watson, and has filed a temporary restraining order against Kevin Kneupper’s Petition of Cancellation that he sent to the Patent & Trademark Office.
You can read the full Complaint here
You can read the Preliminary Injunction and Temporary Restraining Order here
Tara Crescent is the author of The Cocky Series, which series title was also trademarked by Faleena Hopkins. In an interesting twist, as explained by Kevin, Faleena’s series originally was called The Cocker Brothers. A month AFTER Tara published The Cocky Series, Faleena applied for the TM of The Cocky Series, and a month after that renamed The Cocker Brothers: The Cocky Series. According to trademark requirements, the applicant has to have been already using the word/phrase in order to apply, and you have to have been the first one to have used it. Even though Tara had not applied to trademark her series title, she is the only one who can do so, since she was the first one to have used it. Faleena meets neither of these requirements; Tara used it first, and Faleena was not using it at the time she applied for the trademark.
Jennifer Watson is the publicist for the short story anthology Cocktales, which was released today, May 26th. The publicist. Not one of the authors but the publicist. (Of note, 10% of the net proceeds will go to authors impacted by removal or retitling of their books, and 90% will go to Romance Writers of America’s Advocacy Fund… that’s 100% of net proceeds!).
Okay this is going to just SLAY you… she posted this to her FB group (the statement by RWA released on May 31st gives further insight into what was going on from their perspective):
- Retired intellectual property lawyer author, Kevin Kneupper has emerged from retirement to take on the #Cockygate issue. Kevin, at his own expense, has filed a Petition of Cancellation with the Patent & Trade Office to rescind the “Cocky” trademark on the basis of Fraud on PTO. (The cost just to file the petition was $800)
- What happens next? Kevin has filed a Petition of Cancellation with the Patent & Trademark Office. They will send both Kevin and Faleena Hopkins an “institution document” (that initiates the action) and she will have 30 days to respond. So for now… we wait.
- May 14th. Kevin received the Notice of Institution today, and has posted scans of this document and pinned it to his Twitter page, @kneupperwriter. According to this, Faleena has until June 23rd to file a response.
- Kevin has also summarized the situation in some depth in this PodCast interview by Paul Sating of HorribleWriting. I highly recommend listening as, among other things, Kevin lays out the financial impact of defending oneself against a trademark lawsuit… even if you’re right. We’re talking *thousands* of dollars… like… tens to hundreds of thousands. He states as an example that if he was doing this for a client, the billable amount for his time just to research and write the petition above would have been about $10,000. He also explains how the petition process works in detail, as well as the timeline involved. There’s more info about the PodCast and more on Paul’s website.
- I’ve transcribed this interview, and posted it on my blog here if you want to read it rather than listen!
- An important fact: Faleena has targeted Tara Crescent’s series entitled “The Cocky Series” which she had also trademarked; however, Tara’s series existed before Faleena filed for the trademark, and before Faleena used that series name. Significantly, Faleena’s series was originally named “The Cocker Brothers” and she changed it to “The Cocky Series” after having filed for the trademark. She then proceeded to target Tara’s books for removal on Amazon (Amazon has since restored these for sale).
- May 9: Kevin Kneupper has contacted intellectual property lawyers Lauren Emerson, an attorney from the top-notch New York intellectual property firm @LeasonEllis, and her colleague, Cameron Reuber, a top trial lawyer and litigator. They have offered to work on the legal challenge to the “cocky” trademark pro bono. You can follow Kevin on Twitter at @kneupperwriter for updates.
- May 6: Romance Writers of America has stated that they are contacting an intellectual property lawyer.
- RWA asks that all authors who have received a Cease & Desist from Faleena Hopkins to contact email@example.com.
- RWA also contacted Amazon about their removal of books with “Cocky” in the title. On May 9th, Amazon responded that they have restored the books with the title “Cocky” that it had pulled, and will not remove any more until the matter is resolved.
- There is a Petition to the PTO to rescind the TM for the single word “Cocky” at MoveOn.org. As of this writing, 10 pm May 10th, the petition has over 25,300 signatures. Please sign this! This apparently has no legal effect on the issue, but it DOES let the PTO know our opinion and that there are thousands of us out there watching!
- The creator of the font used for the “Cocky” logo, has stated that his fonts are specifically not permitted to be used in trademarks or TM logos, and that he did not give such permission to anyone. He was contacted, and replied that he is on vacation with limited Internet access, and will be addressing this when he returns.
- May 19: Sam Parrett of Set Sail Studios, the font’s creator, has issued a statement you can read here. He will not be pursuing Faleena legally because of the cost involved, but in all other ways he stands behind us!
- May 26: Sam stated that he has sent Faleena a Cease & Desist in regards to her trademarked stylized word.
MORE TRADEMARK ISSUES:
- DARE: TM application was filed by Harlequin Enterprises; however! It’s standard practice for publishing houses to TM the name of an imprint (and Dare is a new imprint). I’m including it here anyway, so that people on alert for #TrademarkTrolls will know that it’s not.
- LitRPG: May 11: “LitRPG, short for Literary Role Playing Game, is a literary genre combining the conventions of MMORPGs with science-fiction fantasy novels” according to Wikipedia. This has been long established, but the term LitRPG was coined in 2013. Be that as it may, Aleron Kong has decided he is the “father of LitRPG” and has applied for a trademark of the word LitRPG for his own exclusive use! Kevin Kneupper has said that any authors writing in this genre should contact Agile Law on Twitter, who has just announced they have found a lawyer to file a petition against this trademark application pro bono! Here is a summation of the situation.
- May 25. Agile Law stated the process was ongoing, no updates to report yet.
- FOREVER (RESOLVED)
- May 22: Marisa Corvisiero, founder of the Corvisiero Literary Agency has filed for a trademark (you can view it here) of the single, common-use word “forever” on behalf of their client, Heidi McLaughlin.
- May 23: Notification of the application hit Twitter and FB. By afternoon, Heidi stated in her FB post that the application was a result of miscommunication and is in the process of being withdrawn. In the evening, Marisa shared a screenshot of the application withdrawal receipt by PTO. Confirmation of withdrawal by PTO May 24. Despite all the many, many questions raised… this is OVER.
- REBELLION (RESOLVED)
- May 10: Just in from Kevin Kneupper: A trademark application on “Rebellion” now before the Patent & Trademark Office that covers all forms of entertainment including books video games etc. Just published for opposition and in the danger zone. But not issued yet! A challenge to the trademark is being filed.
- UPDATE: May 11, Kingsley Brothers have said they will modify their trademark to be appropriate in its scope. Great news!