This has been blowing up on the Webs over the weekend, and I'm surprised it hasn't yet come up here. So there's this writer who goes by the name Faleena Hopkins, and she's pulled a fast one with the US trademark office. Three or four days ago she got the word "cocky" trademarked for her soft-porn romance book series, both in a stylized, font-specific version and in plain text. Since then she's been emailing cease and desist letters to other indie authors who use the word in their titles--- just their titles, not in series names--- threatening that if they don't eliminate "cocky" from those titles, she'll sue and win "all their monies" earned for those works. Passive Guy tells all about it here, and you can follow the links to see what all is going on. Counter suits have already begun, and the predominant IP lawyer opinion around the cybersphere is that the trademark office screwed up and Ms. Hopkins hasn't got a leg to stand on. The problem is, she's already reaming other authors by reporting them to Amazon for copyright (not trademark!) infringement, and Amazon, in its typical crude, bot-minded way, has reflexively taken those authors' books down. Many others on blogs, Twitter, etc., have done a thorough job of hoping Ms. Faleena gets her comeuppance, saying so in very pungent terms. Like them, I'm alarmed at the idea of anyone being granted a common word as a trademark without specific limits to how and when and where it applies. What I'm not hearing is much reflection on Amazon's role and responsibility in this. Yes, they're big. Yes, they're a private company. Yes, we authors are suppliers and not customers. But at what point will they have to answer for acting like blind fate and rolling over authors' rights and livelihoods? What good does it do their business to allow themselves to be used as a truncheon like this? Ideas? Reactions? All I can say is, this is a good argument for going wide.
I think the Amazon aspect is the most worrisome, honestly. If authors can sabotage other authors with trumped-up claims and nonsensical arguments, it's going to be open season. So, yeah, an argument for going wide, but honestly, also an argument for having a publisher behind you to fight back if someone tries shit like this. "Indy" authors are... indie. They don't have a whole lot of support when things go bad. (In this case, there's been loads of outrage and moral support, and promises to contribute to legal funds, but can a victimized author really count on that when she's calling a lawyer?) And how the hell does ANY individual persuade Amazon to respond with a scalpel instead of a hammer?
Has @Steerpike weighed in on this? If not, paging @Steerpike because I want to know what happens if it's a trademark office screwup. Is there a precedent for that? Anything authors with existing titles can do for prevention before they're hit? To me, it does sound like a trademark office screwup, but I'm not an attorney.
The trademark is being challenged - sounds like there's a sort of administrative level at which it can be challenged, and then if the author refuses to accept that we'd go to court. There's a crusading retired-lawyer-turned-author who's working on it. There's also an element of risk for Faleena in that, apparently, people who were using "Cocky" BEFORE her could challenge their trademark, assert their own, and ban HER from using the word. Which isn't really good for publishing, but... it'd be funny!
Her C&Ds aren't worth the paper they are written on, the only worrying aspect is the amazon one. The Trademark is currently being challenged but even if it stands its for the word cocky in a certain font as applied to romance... in a different font no case (shes also got the problem that the creator of the font in question says its not licenced for creating trademarks .... oops) Shes probably wishing she'd never started this tbh (Why 20 books to 50k are standing by her is anyone's guess , but they are seriously harming themselves by doing so)
20 books to 50K are standing by her because she's the personal friend of one of their admins/organisers.
Hopefully he'll have a word about not being so fucking stupid in future. I have good friends who are in positions of power, I don't expect them to cover up for me when I fuck up.
She. Apparently, the "she" in question is also the she who organises a lot of the conferences etc, and the next one has had a lot of tickets returned. I'm not on that FB page anymore (I used to be) because there was an individual on there who had it in for me in a bad way. So I came off it.
You need to think about the inverse. What would it cost them to investigate every trademark claim they get, particularly when they might (maybe? Not a lawyer) be held liable for damages if they were informed of a genuine trademark issue and kept selling the offending books? In much the same way, if my company gets a DMCA against one of the pages we host, we don't investigate the validity. We just take the page down and send the owner an e-mail that's basically saying 'this shit has happened, sort it out between yourselves'. We don't have the resources to look into it. Amazon has orders of magnitude ore resources than us, but they'll also have orders of magnitude more claims to look at.
To be honest standing by your friend personally is fair enough. Deleting all discussion of the situation is stupid though, and removing people from the group for not agreeing with faleena is really fucking dumb. I co admin a photographers group , if one of our members did the photographers equivalent of this we'd allow discussion so long as it was polite. If it were a freind of mine I'd tell him or her to stop digging a deeper and deeper hole
To be fair, I have acknowledged that. To myself, anyway. It's not enough of a consideration to make me start writing query letters, but yeah, it's true. There's a rumor going around that Penguin Random House is getting involved in this, against the trademarker. We'll how that goes.
What makes it worse, is that she knows she's created a shitstorm - her tweet on may 5th was: I am #byeFaleena Let the public stoning commence. I love a good shaming, don't you? Anyone have popcorn? With caramel? Oh good, thanks. *chomp chomp Publicity stunt, anyone? Ploy to make money because she's allegedly financing her own film which is due to go into production this summer? Why would any author do this to other authors?
If it was it was a stupid one - anyone who thinks there's no such thing as bad publicity need only look at Gerald Ratner For those who don't know - he owned a jewelry chain call Ratners which specialised in low end blingy tat. He went on breakfast television and said something along the lines of "All my jewelry is crap and my customers are all mugs" - Ratners went into administration less than a year later
The question is, does the one who charges infringement have to produce any proof, or is a simple "Mommy, he hit me!" enough? It shouldn't be. In your case, what would sorting it out look like? Does the party who issued the DMCA have to come back and say, "Sorry, I was mistaken, there's no violation here"? But if it the charge was made in bad faith to begin with . . . The problem I see here is that Amazon is so unresponsive in all sorts of ways, that it seems about impossible to defend oneself against false and arbitrary charges.
Okay guys, I have officially trade marked "The" "Was" "Here" "There" Theirs" "Cunt" "Bitch" CuckKook" .... so every time you use them.. you better dole out the cash.
Of course the flip side is how much a publisher cares about their author and whether they'll just change the name in response to a C&D rather than fighting it out, at least an Indy has the decision about what to do in their hands. Personally I'd probably wait for a month or so then if whats his chops wins the trademark take down battle sue the arse off Faleena for loss of earnings derived from her wrongly reporting me to amazon ... shes supposedly sold 500k of the cocker brothers series so she must have assets to cover it
In this case, apparently, she contacted Amazon about a "copyright" violation - like, she's using "trademark" and "copyright" interchangeably, and/or she knows Amazon is quick on the trigger to pull things when they hear the word "copyright"...
damn, plans foiled On a side note I have a relative who thinks I could be sued by James Cameron for using the word Avatar. And every goddamn time I have to explain to them that Avatar is a common word
Nah, mine are 9ft tall and dark green. Actually, I think even if there were 8ft and blue you'd still be pretty safe since that is a very vague description. Just add But Ugly horse looking alien thingies. and Nakked too. . I wonder if you can copy right humans... sweet.
In a trademark claim, I'm not sure. I have this idea that you need to provide some proof that you own the trademark, but frankly I have no idea where I got that from so it could be entirely made up. In the case of a DMCA (which is possibly not really the best comparison - it's Digital Millenium Copyright Act, which as @BayView has pointed out isn't the same thing as a trademark), with us, and with anyone else, 'Mommy, he hit me' is enough for us to take the page down. The rough process is: Someone tells us we're hosting some of their copyrighted material. This needs to include some way of identifying the material that's been infringed on (e.g. a link to the original website) but not any hard proof that the person e-mailing us does actually hold that copyright. We take down the offending page. We have to do this within 48 hours or potentially be liable for damages. We inform the user whose page was accused of what has happened. They've then got 14 days to make a counterclaim. If they do this, we reinstate the page, we put the lawyers from camp A in touch with the lawyers from camp B and let them fight it out. That isn't our process. That's the method outlined in the DMCA itself, every hosting company everywhere* has to follow it. The same act may well cover Amazon, since it's internet-based. If it doesn't, I wouldn't be surprised if they had to follow a similar process outlined in whatever laws do cover them, which would explain the hair trigger whenever a copyright breach may be involved. *ETA: not really every hosting company everywhere. Really only those based in the US, since it's a US law - but most of the western world, at least, has very similar laws, and in practice most people use the DMCA wherever they are because that's the one they've heard of.
