Author has trademarked common word; threatening other authors over its use

I've been on the other side of it with Amazon, when it was MY work being plagiarized, and I was happy with how quickly they reacted. But... my claim was legit!

 

Ah. I put "cocky" in Search but nothing that recent came up. I wonder why.

 

All righty! And our first appeal is before the US Patent and Trademark Office!
https://www.dropbox.com/s/dled0pgdgjws5wm/Petition to Cancel Trademark 5447836 - Redacted.pdf?dl=0

EDIT: As @Steerpike has reminded me, it's a Petition to Cancel, not an appeal. (Duh, it's right there in the link, isn't it?)

 

Not an appeal, it’s a petition to cancel the registration. It’ll be interesting to see where this goes.

 

Got it.

 

Not to mention I have an MC who loves apples. Not too worried

 

Of course not. But a common comment when something like this comes up is that a person or entity can’t trademark a word that has been in use for a long time, and that’s not true.

 

You can’t trademark a generic term—so you couldn’t trademark “Apple” to sell apples. You could probably get it as part of an export or import business (if Apple computers didn’t exist) but you’re right it wouldn’t stop someone importing apples because they wouldn’t be infringing your mark by doing so.

People rarely try to get a trademark on a generic term. More often it is a term that is “merely descriptive” of the goods or services. You can’t get a trademark registration for such marks unless you have what is called “secondary meaning,” which is when the market has come to associate the mark with your business over time.

 

Too lazy to dig up the legal reference (maybe it's in the Passive Guy article I originally linked to), but apparently you can trademark a common word in reference to something it's not normally associated with, that it's not descriptive of. And infringement has to do only with products of a similar kind. I know that's not good legalese, but, it's like Steve Jobs could TM the word Apple for computers and Apple Records can do it for music, but an apple grower can't TM the word apple for his fruit. But Apple Records can prevent Apple Computers from using the word once the latter wanted to get into the music distribution business. Thus, iTunes.

The problem with "cocky" is that it's long been used to describe a certain kind of alpha male protagonist/love interest. She didn't invent it and readers apparently didn't connect it to her work in particular. In fact, as Kevin Kneupper brings evidence in his challenge, Ms. Hopkins didn't adopt "The Cocky Series" as a comprehensive series title for all her Cocker Brothers works until after she filed for the TM in September 2017.

I have to wonder why La Faleena's attorneys didn't advise her to TM the whole phrase "Cocker Brothers of Georgia" or whatever, which would have been specific to her work. Unless this was a cynical, preconceived ploy to wipe out her competition.

Yeah.

 

Yes. You can’t trademark a “generic” term. Ever. That’s what “Apple” is if you’re trying to register it for apples. You can get a trademark on a descriptive term if you can show secondary meaning, which isn’t always easy to do.

 

Also, if you have a trademark and the term becomes generic, the mark is lost. That happened to aspirin, for example. It’s somwthing Google was worried about at one point.

 

The firm that filed the trademark for her is well known. They represent a lot of movie stars and others in entertainment. They certainly didn’t write that cease and desist letter, however.

 

I wonder if what she's doing is like an apple grower looking around and discovering that a particular variety name, say, Red Delicious, is not trademarked, getting a successful application through the understaffed, overburdened Trademark Office, then telling all other growers they can't call their Red Delicious apples that any more, or All Their Munniez R Belong 2 Himz.

 

Varietal names are tricky. I file trademark applications for those quite often, but the strategy is to give the variety itself a meaningless name, like some initials and a number, and then to focus the trademark filing on a name to be used in commerce, like “Green Emerald” for grapes. People refer to it as the variety but it’s a trademark under which a variety is sold.

 

I'm pretty sure I've heard that term cocky back in the day. Don't get cocky kid ring a bell! LOL.

 

Whether something is generic or not depends on the goods. The two things can’t be separated. I could register COCKY for a microbrew beer, for example, and it certainly would not be generic in that instance.

 

The RWA (Romance Writers of America) has apparently contacted Amazon and asked them to pause any further removals of books with "cocky" in the title. Hopefully this will stop the bleeding for the time being, and get authors with books already removed back up for sale.

 

Yes.

 

That's a very precise witch hunt there sir.

 

Seems based on what I have read here, that Miss Hopkins has come
down with acute Foot in Mouth syndrome.

Guess it doesn't pay off to piss off a group of people because you're
as spoiled self-entitled little shit.

Hope her books get pulled for her blatant abuse of copyright infringement
claims, and not understanding how TM and C work.