Industry & Advocacy News
June 1, 2018
The Authors Guild won a court ruling today that allows writers to continue selling books whose titles use the word “cocky,” despite a trademark registration owned by a single romance author.
The Authors Guild and the Romance Writers of America (RWA) joined forces in this case to defend the principle that no one should be able to own exclusive rights to use a common word in book or book series titles. In ruling against the author Faleena Hopkins, who claimed exclusive rights to “cocky” for romance titles, Judge Alvin Hellerstein of the Southern District of New York, stated that he did not believe that Hopkins was likely to succeed on the merits.
Despite the popularity of using the word “cocky” in Romance book titles, this spring Hopkins obtained the trademark registration for “cocky” in connection with her series of self-published romance novels, each featuring one of her “Cocker Brothers” characters. She then tried to block the sale of books by other romance writers with titles that included the word.
The Authors Guild believes strongly that no one author should be able to prevent others from using a commonly-used word or phrase in their book titles. The law is clear that individual titles cannot be trademarked, only series titles, and that common words cannot be trademarked at all unless they develop an association in the minds of the public with a particular source (in this case a single author). Moreover, Hopkins initially used the series title “The Cocker Brothers” and not “The Cocky Series.” When Hopkins’ trademark registration was issued in April, Hopkins sent notices to multiple authors telling them to change the titles of their books and asked Amazon to take down all other cocky-titled romance books (not just series).
That is when the Authors Guild stepped in to defend the authors whose books were targeted. The Guild and the RWA separately requested that Amazon put the books back up, since the trademark claims were disputed, and it promptly complied. The two groups then jointly hired the Authors Guild’s outside counsel, Cowan Debaets Abrahams & Sheppard, to write a letter to Hopkins on behalf of Tara Crescent, author of another “Cocky” book series (and an Authors Guild member).
In response, Hopkins filed a lawsuit in the Southern District of New York against three people: Crescent, author and lawyer Kevin Kneupper (who challenged Hopkins’ trademark registration), and book publicist, Jennifer Watson. In doing so, Hopkins asked for a temporary restraining order to prevent the May 26th publication of a collection of stories by different authors, entitledCocktales: The Cocky Collective (Hopkins incorrectly named Watson as the publisher). The Guild’s attorneys prevailed in court last Friday the 25th to prevent the temporary restraining order and again today in a hearing on Hopkins’ motion for a preliminary injunction.
We opposed the attempt to block publication of a book, arguing: “Any order that restricts creative expression in favor of promoting the tenuous (at best) purported rights of a single author is simply contrary to the public interest in freedom of expression.”
Judge Hellerstein agreed and found that Hopkins was not likely to succeed on the merits because the word “cocky” is a common and weak trademark, there was no evidence of actual confusion, and romance readers are sophisticated consumers—meaning that they are not likely to confuse Hopkins’ and Crescent’s books.
You can read our papers here, filed jointly with attorneys for Kneupper and Watson.
The Authors Guild seldom litigates on behalf of individual authors, but this is an important issue for authors generally. Authors should be able to express themselves in their choice of titles. A single word commonly used in book titles cannot be “owned” by one author. This is especially true when, as here, the word has already been in use by other authors in titles for years.
About the Authors Guild
The Authors Guild has served as the collective voice of American authors since its beginnings in 1912. Its approximately 10,000 members include novelists, historians, journalists, and poets—traditionally and independently published—as well as literary agents and representatives of writers’ estates. The Guild is dedicated to creating a community for authors while advocating for them on issues of copyright, fair contracts, free speech, and tax fairness. Please visit www.authorsguild.org.