# NULL



## Taking my troll a$$ outta here

Content removed due to TOS Change of 2018. I do not agree to the terms.
Many formally active members now participate in discussions here.

_Edited to added "MERGED" to thread title. - Becca_
_Re-edited to add the "cockygate" to thread title, for ease of searching. - Becca_

*Edit: For help with finding key info within this very large thread, try using its Table of Contents. - Becca*


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## Used To Be BH

EB said:


> It appears that an author has trademarked the mark "cocky" for "A series of books in the field of romance" and "A series of downloadable e-books in the field of romance."
> 
> Multiple authors are reporting that they have had their books reported to Audible & Amazon over having the word "cocky" in a book title. (Search social media for cocky + trademark). Other authors state they have received emails from the owner of the TM threatening legal action if they do not change the title of their book. Some authors have complied and changed the title of their book; some are not complying and are considering other recourse. The authors being targeted seem to be indie authors, both those who used the word "cocky" in their title before the TM was registered and after.
> 
> What are your thoughts on this and what do you think the implications of this will be for the author community?


This is weird. Can someone trademark something that other people have already used? From what you're saying, apparently. The whole thing sounds ridiculous.


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## Rob Martin

The same happened for the term "LitRPG", I think there's a few threads on it here.


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## Becca Mills

Can trademarking really force people to change something retroactively?? That seems grossly unfair.

IANAL, so maybe there's something I'm not getting, but if "space marine" couldn't be successfully defended as a trademark, due to preexisting wide use, how can a word as common as "cocky" be?


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## Lydniz

I think this person is going to end up spending a lot of money for nothing.


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## Mercedes Vox

RBN said:


> 'Scuse me. Gotta go trademark "duke" really quick.


And "billionaire."


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## C. Gockel

Lydniz said:


> I think this person is going to end up spending a lot of money for nothing.


I think someone is going to cause other people to spend a lot of money for nothing. I am so angry about this ... its grossly unfair and shows the at our legal system is deep in the suck that this is happening at all.


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## Becca Mills

Mercedes Vox said:


> And "billionaire."


Dibs on "hot."


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## PhoenixS

*************


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## Taking my troll a$$ outta here

C. Gockel said:


> I think someone is going to cause other people to spend a lot of money for nothing. I am so angry about this ... its grossly unfair and shows the at our legal system is deep in the suck that this is happening at all.


Me too ^^

What absolutely boggles my mind is that any author can be hit with a lawsuit and be forced to shell out tons of money to defend it. I'm sure that's why many authors have simply changed the book name after they were threatened rather than defend themselves.

I've been reading responses from lawyers on this issue, but even they are not in agreement. Some say the TM holder has no chance of winning a lawsuit, but that still doesn't stop her from making the threats or filing a lawsuit. Some say it's a huge TM issue that slipped through the cracks because no one objected in a timely manner, and that the TM holder CAN legally keep others from using the word.

IANAL, but it appears that the way the TM is worded that the word "cocky" only applies to "A series of books in the field of romance" and "A series of downloadable e-books in the field of romance." That would exclude a title, the way I read it.



Becca Mills said:


> Can trademarking really force people to change something retroactively?? That seems grossly unfair.


Yes, seriously! I am particularly interested to hear what legal folks think about that.


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## guerin

The fact that this is a common word means that they would most likely fail in their attempts to enforce this trademark based on the existence of prior art. The problem is, are you willing to pay the cost of litigation to win, and could you consider it winning after it cost you some major legal fees?

I believe it will take someone who has enough money to fight this, but from my reading of Trademark law as it applies to book titles, you are only forbidden from using the word Cocky in your series name. (Notice in the link the trademark symbol is only in the series name and not the actual book's title.)

Unfortunately, this appears to be a new trend in the publishing industry. It may very well be an opening shot against the indie movement. Any large publisher would fight this or pay the TM holder to help enforce their own abuse of the TM system.

_Edited to remove link. Drop me a PM if you have any questions. - Becca_


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## guerin

Bill Hiatt said:


> This is weird. Can someone trademark something that other people have already used? From what you're saying, apparently. The whole thing sounds ridiculous.


Perhaps you have never heard of Apple? How about Amazon? Yes, you can TM a common word but obviously, in these cases, Apple couldn't sue you for publishing a book with a title like "The Apple Did Not Fall Far from the Tree", nor could Amazon for having a book titled "The Reptiles of the Amazon"


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## Guest

The Court of Public Opinion can be much stronger than a Court of Law. If enough impacted authors made public statements of what was happening, the author might well be embarrassed into backing down. It has been known to happen when enough bad publicity hits that a TM holder will back off an obviously poorly thought-out enforcement.

Trademarking the phrase and trade dress (font and color choices) is one thing, and that isn't a problem. Attacking ANY romance author with the word "cocky" in the title needs some public ridicule.


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## Lydniz

C. Gockel said:


> I think someone is going to cause other people to spend a lot of money for nothing. I am so angry about this ... its grossly unfair and shows the at our legal system is deep in the suck that this is happening at all.


Yes, probably what I meant was she is going to spend a lot of money and cause other people to spend a lot of money and her case won't be upheld (because stupid) and all she'll have achieved is to make lawyers richer and herself unpopular.


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## MClayton

Remember the "aha moment" fight between Oprah and Mutual of Omaha? https://www.techdirt.com/articles/20091110/0741356873.shtml

IANAL, either, but I have a feeling there must be some sort of loophole somewhere, and that this isn't how trademark law was originally intended to work.


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## Rob Martin

Victoria.T76 said:


> In the U.K. we can challenge trademarks with no cost to ourselves, are you able to do the same in the U.S?


Nope. Everything here costs.


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## Word Fan

EB said:


> IANAL, but it appears that the way the TM is worded that the word "cocky" only applies to "A series of books in the field of romance" and "A series of downloadable e-books in the field of romance." That would exclude a title, the way I read it.


Exactly. Despite the huffing-and-puffing threats that one might receive over the use of the single word in one's title (and to which one should respond by saying that that the sender is full of **** should refrain from making baseless claims or will be slapped with a responding injunction), it is the use of "cocky" in a competing *series* that is being protected against.

This I can actually understand. It's no different from the powers-that-be not allowing just any old doofus to write and market (and hence make money from) a "Star Wars" book.

When you put in all of that effort, you don't want leeches bleeding off income that is rightfully yours.

Use of the single word is fine, especially (as has been done in past cases) if you place a notice near the beginning of the book stating that your book is not part of or connected in any way with the "cocky" series (or something like that).

_Edited. PM me if you have any questions. --Betsy/KB Mod_


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## CassieL

There was a lot of discussion about this on the Author Support Network FB group last night. What I pulled from that discussion was that there was a comment period between when this was filed and when it was approved and that if someone had objected during that period it would've been easily thrown out. But no one was monitoring those filings so no one did. Now that the mark has been approved it becomes a much more serious issue and much harder to challenge. And anyone impacted by this needs to be very proactive about doing so.


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## Guest

Word Fan said:


> Exactly. Despite the huffing-and-puffing threats that one might receive over the use of the single word in one's title (and to which one should respond by saying that that the sender is full of **** should refrain from making baseless claims or will be slapped with a responding injunction), it is the use of "cocky" in a competing *series* that is being protected against.


Except the TM holder in question is apparently threatening to sue anyone with the word "cocky" in the title. And as we have learned from a previous thread here in KB, defending yourself in civil court, even when you are 100% in the right, is not cheap and you have almost no chance of recovering your expenses.

Authors who lack the financial resources to defend against this sort of thing are forced to either: A. comply or B. Risk bankruptcy and defend. Because even if you win, the chance of collecting anything is somewhere between slim and none. This is how patent trolls are able to extort money from small businesses. You either pay the $1000 to "license" the patented concept, even when you are 100% in the right, or you spend potentially hundreds of thousands fighting it.

The nature of civil court in the U.S. favors the litigant that can afford to pay the legal fees. If you lack the resources to defend, you are pretty much screwed.


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## Evenstar

I've just trademarked the term "Bad Boy" within a series title. Please change all your titles immediately, or pay me one million dollars per book to continue usage.


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## Lydniz

Victoria.T76 said:


> I found the series this relates to EDITED: removed link, as whilst I do not agree with what she is doing, I would hate to direct people to her.
> 
> It seems to me the copyright relates to the series title only, and the word cocky can be used on a book title.


Ouch. It looks like she's getting backlash.

_Edited to remove link from quote. Drop me a PM if you have any questions. - Becca_


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## munboy

Man, US tm laws are so antiquated and messed up.

If somebody owns "cocky" they could go after others, like tshirt designers who use cocky in a design. It's stupid.


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## guerin

Victoria.T76 said:


> I found the series this relates to EDITED: removed link, as whilst I do not agree with what she is doing, I would hate to direct people to her.
> 
> It seems to me the copyright relates to the series title only, and the word cocky can be used on a book title.


I believe this is the case. The TM is valid for only the series name and I think if you were to try and use it in the name of your series they would have a case. If you notice in the link I posted earlier, the TM symbol, the R inside of a circle, only appears in the series name and NOT the book title. The author also trademarked "Cocker Brothers".

Here is some interesting reading, yawn, yawn, on the subject. http://www.copylaw.com/new_articles/titles.html

If you receive such a letter from an author, you are under no obligation to remove the word from your title.

Since you yourself are a writer, you should pen a nice response letter asking them to prove their claims. First, you would like to see a copy of all the Cease and Desist letters they have sent to the thousands of authors who published books with said word in the title prior to their TM registration. (Prepare a nice list for them to respond to. You can find a plethora of such books on Amazon.) Second, they should also provide you a list of all judgments from any court of law they have received against those, or any other authors, using said word in their book titles.

In other words, force them to pay for a lawyer first.


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## Becca Mills

Cassie Leigh said:


> There was a lot of discussion about this on the Author Support Network FB group last night. What I pulled from that discussion was that there was a comment period between when this was filed and when it was approved and that if someone had objected during that period it would've been easily thrown out. But no one was monitoring those filings so no one did. Now that the mark has been approved it becomes a much more serious issue and much harder to challenge. And anyone impacted by this needs to be very proactive about doing so.


I wonder if trademark applications posted for public comment are the sort of thing a group of author volunteers could monitor.


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## VirginiaMcClain

guerin said:


> I believe this is the case. The TM is valid for only the series name and I think if you were to try and use it in the name of your series they would have a case. If you notice in the link I posted earlier, the TM symbol, the R inside of a circle, only appears in the series name and NOT the book title. The author also trademarked "Cocker Brothers".
> 
> Here is some interesting reading, yawn, yawn, on the subject. http://www.copylaw.com/new_articles/titles.html
> 
> If you receive such a letter from an author, you are under no obligation to remove the word from your title.
> 
> Since you yourself are a writer, you should pen a nice response letter asking them to prove their claims. First, you would like to see a copy of all the Cease and Desist letters they have sent to the thousands of authors who published books with said word in the title prior to their TM registration. (Prepare a nice list for them to respond to. You can find a plethora of such books on Amazon.) Second, they should also provide you a list of all judgments from any court of law they have received against those, or any other authors, using said word in their book titles.
> 
> In other words, force them to pay for a lawyer first.


Indeed. It also details on the trademark certificate that it is for the word pertaining to romance series titles. Which is quite specific.


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## Bob Stewart

Cassie Leigh said:


> There was a lot of discussion about this on the Author Support Network FB group last night. What I pulled from that discussion was that there was a comment period between when this was filed and when it was approved and that if someone had objected during that period it would've been easily thrown out. But no one was monitoring those filings so no one did. Now that the mark has been approved it becomes a much more serious issue and much harder to challenge. And anyone impacted by this needs to be very proactive about doing so.


I'm surprised they allowed it anyways. And I believe it could still be taken away if someone challenged it who'd been using it longer, or challenged it on the basis it's a generic term for bare-chested men. ;-)

But of course, who'd spend the money doing that...


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## Rick Gualtieri

kw3000 said:


> I've trademarked Planet Earth and the Moon. Good luck living on Mars, suckers! Don't let my newly private atmosphere hit ya on the way out.


So we rename it to Terra and continue living here. Nice try!


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## Atlantisatheart

I can see this going very badly for that author if other romance authors decide to set their pack of readers (wolves) on her. Bad reviews, no sales - etc.

What did she think she was doing? Something like this could end her career.

It's also absolutely stupid that the TM office allowed this to go through. Who watches the watchers for their screwy ideas?


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## solo

It is ridiculous. A common word being trademarked. 

I don't suppose anybody has trademarked "romance" "love" "sci-fi" "mil-fic" "fantasy" "horror" etc? If not I've got dibs on all the categories. LOL. 

That trademark sets a horrible precedent. And legally assailable. I don't know if the trademark meets the standards of the Madrid and Paris Conventions.


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## Evenstar

Rick Gualtieri said:


> So we rename it to Terra and continue living here. Nice try!


But isn't that the point? She's trying to force people to rename!

Maybe this is naive of me but I'm amazed anyone took any notice at all. I'd be all, yeah right, whatever!


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## Lydniz

Evenstar said:


> Maybe this is naive of me but I'm amazed anyone took any notice at all. I'd be all, yeah right, whatever!


I think she's been clever, though. All she has to do is report an "offending" book to Amazon, point them in the direction of her trademark, and they'll do all the work for her and take it down.


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## DonovanJeremiah

Be right back, writing a series called Corky Berstards.


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## Evenstar

Lydniz said:


> I think she's been clever, though. All she has to do is report an "offending" book to Amazon, point them in the direction of her trademark, and they'll do all the work for her and take it down.


Okay, yep, that's downright malicious.


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## ShayneRutherford

DonovanJeremiah said:


> Be right back, writing a series called Corky Berstards.


The trademark is for the word, so if you just swap out the o for an asterisk you should be fine.


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## David VanDyke

guerin said:


> Here is some interesting reading, yawn, yawn, on the subject. http://www.copylaw.com/new_articles/titles.html
> 
> If you receive such a letter from an author, you are under no obligation to remove the word from your title.
> 
> Since you yourself are a writer, you should pen a nice response letter asking them to prove their claims. First, you would like to see a copy of all the Cease and Desist letters they have sent to the thousands of authors who published books with said word in the title prior to their TM registration. (Prepare a nice list for them to respond to. You can find a plethora of such books on Amazon.) Second, they should also provide you a list of all judgments from any court of law they have received against those, or any other authors, using said word in their book titles.
> 
> In other words, force them to pay for a lawyer first.


This.

Abusers are often successful because good people won't stand up to them. The good people think "the law is the law" and they comply. But laws are only laws in reality when they are enforced.

So, the best move is to politely tell Ms. Cocker to go ahead and try to enforce it. Fight fire with fire. Let her spend the money.

Now, if Amazon or others end up removing your books on the guilty-until-proven innocent principle, then that's another story. But, then at least you'll just be dealing with Amazon, and they usually eventually come around on these things.

Usually.

By the way, I call "Space Opera."


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## inconsequential

ShayneRutherford said:


> The trademark is for the word, so if you just swap out the o for an asterisk you should be fine.


Someone on Twitter said they contacted the TM office, and the gentleman on the phone said the TM is for any spelling of the word.

Don't know how true that is, because, you know, it was on Twitter. But it might have a longer reach than just changing the spelling or swapping out a letter with an asterisk.


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## Becca Mills

David VanDyke said:


> By the way, I call "Space Opera."


Too late, I already got "space." And "opera." Feeling a little bad for Verdi, but oh well.


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## Taking my troll a$$ outta here

inconsequential said:


> Someone on Twitter said they contacted the TM office, and the gentleman on the phone said the TM is for any spelling of the word.


yeah, I saw that, too. It will be interesting if RWA gets involved as well.

In the meantime, I call dibs on the word "time". I should be able to knock out my entire time-travel romance genre with that one.


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## guerin

I'd like to clarify something here. I've noticed that this author has been getting some bad press and there are only accusations, at least that I can find, that she has actually used this TM to threaten or bully anyone. Let's wait and see if any of these accusations are true before we decide to judge this author. I didn't post the link to one of her books for people to go and jump all over her. I posted it to show the use of the TM in this case.

One of the links I posted earlier explained some reasons that authors might be best served by using the trademark system. I don't have a problem with anybody protecting their IP by using a TM to protect their interests in cases where a copyright is insufficient. One of the cases raised in the link I posted was that a copyright might not be enough to protect your pen name.

_*To the chagrin of many, the courts and the Copyright Office have made a bright-line policy determination that titles, names (including pen names), short phrases and mere listings of ingredients (as in recipes), no matter how clever, do not possess enough original expression to warrant copyright protection.*_

If this author is using the TM to protect her work, I'm all for that. If she's using it to unjustly intimidate other authors, I'm against it, and I think the courts will be as well.


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## Rick Gualtieri

guerin said:


> If this author is using the TM to protect her work, I'm all for that. If she's using it to unjustly intimidate other authors, I'm against it, and I think the courts will be as well.


I don't think many of us would have a problem if she'd trademarked her series name, but instead she grabbed a single fairly common word.

Kind of like if I wanted to trademark mine, The Tome of Bill, but decided to just grab the name Bill. It's too far reaching to be taken as benign at face value.


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## Catchy

I had my Google ad pulled because my tag line said, "Ace the glance test." I'm a book cover designer. Some Ace Towing company claimed I was infringing on their trademark, LOL. Apparently if you have enough $$ you can own anything, even a word.


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## AmpersandBookInteriors

SummerNights said:


> I don't think she agrees because she just posted on 20BooksTo50K about how she had to do it because apparently her readers couldn't tell her books from other books with the word "cocky" in the title (insert eyeroll) and also because everyone was copying her.


I love watching people set themselves up for utter failure. Have fun with the next few years of personal grief and lawsuits, ma'am.


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## Sam Kates

David VanDyke said:


> Now, if Amazon or others end up removing your books on the guilty-until-proven innocent principle, then that's another story. But, then at least you'll just be dealing with Amazon, and they usually eventually come around on these things.


This is precisely how the Zon seems to operate - Julie's thread is a timely illustration. All it takes is some sort of bot-induced flag (do they have them for TMs? If not, perhaps that's coming) and we spend days or weeks or months trying to prove our innocence, while, worst-case-scenario, our account is suspended. And all because someone sneaked beneath the radar and TM'd a commonly used word?

Something is rotten in the state of Denmark.


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## Atlantisatheart

SummerNights said:


> I don't think she agrees because she just posted on 20BooksTo50K about how she had to do it because apparently her readers couldn't tell her books from other books with the word "cocky" in the title (insert eyeroll) and also because everyone was copying her.


Thanks, just went and read that and maybe she could have suggested to her readers to check for her name on the book. I noted they turned off commenting and a friend on there said that they'd deleted earlier posts by the admins that were sticking up for her because authors were miffed and not towing the 20 books dictate that she's done nothing wrong.


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## 75814

I don't understand why people feel the need to do this. Another author posted a story where she inadvertently learned she published a romance book with the same title as another romance author. She contacted the author and apologized. The other author said it was no problem and even promoted her book.

We need more indies lifting each other up, not tearing each other down.

_Edited. PM me if you have any questions. --Betsy/KB Mod_


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## AmpersandBookInteriors

Perry Constantine said:


> I don't understand why people feel the need to do this. Another author posted a story where she inadvertently learned she published a romance book with the same title as another romance author. She contacted the author and apologized. The other author said it was no problem and even promoted her book.
> 
> We need more indies lifting each other up, not tearing each other down. I'm so sick of this BS.


But Perry, there's MONEY INVOLVED. We must become VICIOUS and RUTHLESS in our quest for MORE.


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## busywoman

The Trademark office should not have allowed registration of the word "Cocky" by itself. If it's for a series it should have been registered for "Cocky series". The USPTO was simply wrong to issue such a broad registration.

However, despite being registered it can be challenged on any basis it could have been challenged originally, for up to 5 years. Five years is when it becomes much harder to contest (so called "incontestible").


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## KSRuff

Well, we should have seen this coming when Ford blocked Musk by filing for a trademark on the "Model E" so Musk couldn't have S.E.X. with all those seriously hot Tesla models. With a little ingenuity, Musk got his S.E.X. in the end. He just used a creative type font for the number 3 so it looks like an E. Now he's working on the Model Y. I hope he filed a trademark for that!

_Edited. PM me if you have any questions. --Betsy/KB Mod_


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## RJ Crayton

I've read through the thread thus far, and there's been mention of Amazon intervening. Does anyone know this for a fact? Trademarks are not covered by the DMCA, so I'm wondering what reason they'd take it down. And if she is alleging a copyright claim falsely, she can suffer serious damages if she is sued, https://www.lexology.com/library/detail.aspx?g=13f9814f-b56e-4314-8e1b-95215ce60a6d. (And I am not saying she did allege a copyright violation. That's the whole point. I'm trying to find out if anyone knows for sure that Amazon removed a book that was reported for violating a trademark, and if so, why, as trademarks aren't covered under DMCA).


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## Becca Mills

SummerNights said:


> I don't think she agrees because she just posted on 20BooksTo50K about how she had to do it because apparently her readers couldn't tell her books from other books with the word "cocky" in the title (insert eyeroll) and also because everyone was copying her.


Mimicry does happen, and I'm sure it's annoying. I just ran a search, and some books came up that use the word and clearly echo her branding. I imagine many of us would find that sort of search piggybacking frustrating.

But it seems to me Rick G. hit on a great balance: if you're concerned about it, trademark your series name and the branded appearance of it on your books, and go after people who try to use your series name and branding. Don't worry so much about titles; trust readers to be able to differentiate your books from others' based on series name, branding, author name, and that _je ne sais quoi_ that makes your books special. That way, you discourage real efforts to piggyback on your success without unduly burdening people who don't intend to take advantage of you.

What she's doing seems to cast a much wider net than that. It might catch all kinds of authors -- people who've never heard of her books, people who don't have significantly overlapping readerships, people who use the word "cocky" but not in the formula her titles use, etc.


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## C. Gockel

I just want to say, I think that SERIES names fall under copyright if you're dealing with the same genre. I don't think you even have to apply, technically.


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## Becca Mills

Let's keep the focus on the trademark issue, folks.


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## 101569

If youre trademark a series name for example  the twilight saga. You would trademark the entire phrase the twilight saga not just the word twilight. Titles of books cant be trademark only series. How can you only trademark one word in your series name? So an author by that measure could trademark the word saga and no other authors could write a saga.


corrected trademark/copyright


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## Crystal_

idontknowyet said:


> If youre copywriting a series name for example the twilight saga. You would copyright the entire phrase the twilight saga not just the word twilight. Titles of books cant be copyright only series. How can you only copyright one word in your series name? So an author by that measure could copyright the word saga and no other authors could write a saga.


It's a trademark, not a copyright.

You can trademark single words, but they're usually very specific, i.e. Apple applies to computer companies, but not bakeries. If I want to open an Apple Bakery, I'm probably fine. If I want to open Apple Computer Repair, I'm probably not. IANAL, but that is my understanding.


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## Betsy the Quilter

Crystal_ said:


> It's a trademark, not a copyright.
> 
> You can trademark single words, but they're usually very specific, i.e. Apple applies to computer companies, but not bakeries. If I want to open an Apple Bakery, I'm probably fine. If I want to open Apple Computer Repair, I'm probably not. IANAL, but that is my understanding.


And then there's this...
https://www.washingtonpost.com/archive/lifestyle/1990/10/24/sex-and-the-bomber/8fad9052-40f8-4ffd-a789-949a4f22368d/


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## Jena H

EB said:


> It appears that an author has trademarked the mark "cocky" for "A series of books in the field of romance" and "A series of downloadable e-books in the field of romance."
> 
> ....


If I'm not reading the filing info incorrectly (which is easily possible) it looks like this person registered the TM with the help of a high-powered lawyer. In fact, the author's "business name" is using the lawyer's Park Ave (NYC) office as "owner address." So it doesn't sound like this is an action taken by a simple writer from Anytown, USA. Even with the help of cousin Wally, who's in his first year of law school.


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## guerin

idontknowyet said:


> If youre trademark a series name for example the twilight saga. You would trademark the entire phrase the twilight saga not just the word twilight. Titles of books cant be trademark only series. How can you only trademark one word in your series name? So an author by that measure could trademark the word saga and no other authors could write a saga.
> 
> corrected trademark/copyright


They trademarked the word Twilight and not the series name. I guess Saga was already taken


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## Usedtoposthere

I hope she has deep pockets. I have a feeling she's going to need them. 

The gal that says, "I'm not here to make friends!" rarely wins the game.


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## David VanDyke

guerin said:


> If this author is using the TM to protect her work, I'm all for that. If she's using it to unjustly intimidate other authors, I'm against it, and I think the courts will be as well.


Good law is not founded on the intentions of those with power. Intentions change. Good law is made on limiting power to its appropriate expression, not depending on good intentions.

Give someone the power to crush competition with a simple DMCA (or whatever the TM equivalent is) notice, and they become more likely to use it. If one person gains that power and it's upheld, there will be a rush to do the same--and there will be many who don't resist the temptation to do so.


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## David VanDyke

SummerNights said:


> I don't think she agrees because she just posted on 20BooksTo50K about how she had to do it because apparently her readers couldn't tell her books from other books with the word "cocky" in the title (insert eyeroll) and also because everyone was copying her.


Yeah, I'm sure the author of the first Billionaire romance feels the same way, and the first author who wrote a "space marine" story, but sometimes the cure is worse than the disease.


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## 101569

guerin said:


> They trademarked the word Twilight and not the series name. I guess Saga was already taken


Actually according to Trademark Electronic Search System (TESS) 
They trademarked The Twilight Saga. 
The individual word Twilight is trademarked several times including a lighting company and cables. Book names cannot be trademarked is my understanding.


----------



## Atlantisatheart

Yep, I can understand a TM of something unique - as in the guys who write sci-fi and create a world name, race, etc, but the word cocky? I've never had it on a book title, but I've used it plenty of times to describe my characters, it's just such a basic word.

There must be plenty of us who've been around that long that have been copied, in style, covers, and titles, I know I have, and good luck to them. Why would anybody be meanspirited enough to pull up the ladder behind them?


----------



## guerin

idontknowyet said:


> Actually according to Trademark Electronic Search System (TESS)
> They trademarked The Twilight Saga.
> The individual word Twilight is trademarked several times including a lighting company and cables. Book names cannot be trademarked is my understanding.


Twilight is not the book name. Summit Entertainment has a trademark on Twilight and there are several cases involving litigation over this trademark. If you want to test this trademark feel free to write a book with that word in the title. (Especially one in the bitlit genre)


----------



## David VanDyke

I just had an idea. I don't think it qualifies as malicious. I'm thinking it might be an appropriate way to deal with the situation. Or maybe not. I'm torn. The little devil is whispering in my ear--but I am actually serious. Maybe. 

Lots of books with lots of that word, or variations thereof, in the title (not the series name), or in the description, or other places where it's completely steel-plated defensible, may make it clear that serving zillions of other authors with legal papers is pointless. That's what I'm thinking. Make it such an ubiquitous term that any legal action becomes meaningless--all while complying with the letter of the law and simultaneously appealing (or whatever the legal term is) by the proper channels.

(comments welcomed)


----------



## 101569

guerin said:


> Twilight is not the book name. Summit Entertainment has a trademark on Twilight and there are several cases involving litigation over this trademark. If you want to test this trademark feel free to write a book with that word in the title. (Especially one in the bitlit genre)


Just a few I found on amazon searching twilight.

The Legend of Zelda: Twilight Princess Vol. 1 pub 3/14/17

Imperial Twilight: The Opium War and the End of China's Last Golden Age pub 5/15/18

Twilight's Spell (Vampire Magic Book 1) pub 2/26/18

Edinburgh Twilight (Ian Hamilton Mysteries Book 1) pub 9/5/17

There are hundreds more. My guess is they attempted to block the use of the word but were unsuccessful.


----------



## Becca Mills

To ask a larger question: 

Considering just those books that seem to be intentionally mimicking this author's "Cocky" titles, cover layout, and typography (I noticed a few of these in my search), what do y'all think is the best way to respond to that sort of thing? Should successful authors just ignore it? Try to stamp it out, but with a more limited use of trademarking? Some other response?


----------



## Patty Jansen

Becca Mills said:


> To ask a larger question:
> 
> Considering just those books that seem to be intentionally mimicking this author's "Cocky" titles, cover layout, and typography (I noticed a few of these in my search), what do y'all think is the best way to respond to that sort of thing? Should successful authors just ignore it? Try to stamp it out, but with a more limited use of trademarking? Some other response?


Consider it a mark of success? Imitation is the ultimate form of flattery and all that?


----------



## David VanDyke

Becca Mills said:


> To ask a larger question:
> 
> Considering just those books that seem to be intentionally mimicking this author's "Cocky" titles, cover layout, and typography (I noticed a few of these in my search), what do y'all think is the best way to respond to that sort of thing? Should successful authors just ignore it? Try to stamp it out, but with a more limited use of trademarking? Some other response?


The more unique and specific a brand is, the more defensible, both legally and by common sense. Just TMing the word "Cocky" is common-sense ridiculous. If the TM specifies "Cocky Series" and identifies it with a romance series having such and such characteristics and so on, that's much more defensible. Just like Apple is not TM-able, but Apple plus computers plus the logo is.

One big problem is, what in this case can possible be considered a unique expression? You can't TM all pictures of apples, only something like the Apple logo. How to satisfy the unique demands of TM without making it too broad, like the "space marine" fiasco?


----------



## Becca Mills

Patty Jansen said:


> Consider it a mark of success? Imitation is the ultimate form of flattery and all that?


That would be my impulse. Then again, I've never experienced this particular type of frustration ... so easy for me to say. 



David VanDyke said:


> The more unique and specific a brand is, the more defensible, both legally and by common sense. Just TMing the word "Cocky" is common-sense ridiculous. If the TM specifies "Cocky Series" and identifies it with a romance series having such and such characteristics and so on, that's much more defensible. Just like Apple is not TM-able, but Apple plus computers plus the logo is.
> 
> One big problem is, what in this case can possible be considered a unique expression? You can't TM all pictures of apples, only something like the Apple logo. How to satisfy the unique demands of TM without making it too broad, like the "space marine" fiasco?


Right. And this particular situation seems awfully risky as a precedent. I'm imagining one word after another being carved out of usability within popular genres as authors panic and rush to trademark their series titles.

Perhaps if she'd only gone after those books that seem to have copied her cover layouts and fonts, asking them to quit mimicking her branding but not bothering with the word "cocky," so long as it wasn't typographically like hers?


----------



## Atlantisatheart

Becca Mills said:


> To ask a larger question:
> 
> Considering just those books that seem to be intentionally mimicking this author's "Cocky" titles, cover layout, and typography (I noticed a few of these in my search), what do y'all think is the best way to respond to that sort of thing? Should successful authors just ignore it? Try to stamp it out, but with a more limited use of trademarking? Some other response?


I've been around since 2012 and it was going on back then. I've had everything mimicked and by some authors that have gone on to be pretty big indies (generic; you're welcome.) No matter what this author claims, readers aren't stupid enough to be fooled. They picked up the books because they were similar, and if they did make a mistake, well, that's what the refund option is for.

I'd say ignore it or you're only going to create more problems.


----------



## Rick Gualtieri

Becca Mills said:


> To ask a larger question:
> 
> Considering just those books that seem to be intentionally mimicking this author's "Cocky" titles, cover layout, and typography (I noticed a few of these in my search), what do y'all think is the best way to respond to that sort of thing? Should successful authors just ignore it? Try to stamp it out, but with a more limited use of trademarking? Some other response?


On it's surface her trademark on the stylistic use of the term sounds legit. I'd have no problem with that. Heck, find your own font treatments.

But she's overstepping herself. Rather than make this a small defensive posturing thing, she's turning this into a massive dumpster fire and painting herself as the bad guy.


----------



## Atlantisatheart

Rick Gualtieri said:


> On it's surface her trademark on the stylistic use of the term sounds legit. I'd have no problem with that. Heck, find your own font treatments.
> 
> But she's overstepping herself. Rather than make this a small defensive posturing thing, she's turning this into a massive dumpster fire and painting herself as the bad guy.


Her covers aren't unique, PNR were doing that before romance were. The symbol brand, everyone and their dog have been doing that. As for the word cocky - others came before her there as well, so she's ripping everyone else off and then TM-ing for herself. Maybe if she'd come up with something fresh and new she might be able to posture, but not from what I can see.

_Edited. Drop me a PM if you have any questions. - Becca_


----------



## 75814

I just remembered that a few years ago, a fan sent me a link to a comic book series. It was about a team of superheroes called Vanguard. This was the same name as my superhero novel series. Similarities pretty much ended there and it's not surprising to see why--vanguard is the type of name well-suited to a team of superheroes, after all. 

I found the writer/artist on Twitter and sent him a message. We had a good laugh about it and we both shared links of each other's work with our respective fans.


----------



## jb1111

Reading through this thread, looking at a couple of the books in question, and looking over the TM documents, it all looks like yet another way to fight off the competition I suppose.


----------



## C. Gold

jb1111 said:


> Reading through this thread, looking at a couple of the books in question, and looking over the TM documents, it all looks like yet another way to fight off the competition I suppose.


Nah. The better way to do it would have been to trademark the style she uses on her covers. It's very distinguished, used on all her covers, and worth trademarking to keep copycats from confusing her branding. I'd pay to keep that look unique, too. She got really bad advice if she was told to trademark just the word -- a common word used in romance. That is only going to anger every romance writer who finds out about this whether they use 'cocky' in their series names or not. It's already begun.  Plus everyone else will want the TM to fail because otherwise it will open an entire can of worms as everyone rushes to TM commonly used words and causes no end of mess.


----------



## Usedtoposthere

C. Gold said:


> Nah. The better way to do it would have been to trademark the style she uses on her covers. It's very distinguished, used on all her covers, and worth trademarking to keep copycats from confusing her branding. I'd pay to keep that look unique, too. She got really bad advice if she was told to trademark just the word -- a common word used in romance. That is only going to anger every romance writer who finds out about this whether they use 'cocky' in their series names or not. It's already begun.  Plus everyone else will want the TM to fail because otherwise it will open an entire can of worms as everyone rushes to TM commonly used words and causes no end of mess.


Except that Courtney Milan published a book first with that same author font and distinctive cover style, so ... hmm.

It's a small community, especially in romance. I wouldn't want to p*ss so many fellow authors off like that--and their readers. An awful lot of awfully big names are speaking out. Not a pretty picture. I think she'll regret this one. I hope it goes down in flames, as above--this would be a terrible precedent.


----------



## Mark Dawson

If this was a case of an author protecting the look and feel of a series - because, say, other authors were effectively passing off their books as hers - I would be fine with it. That's defending your business and branding, and a sensible idea. If, on the other hand, it is a case of trying to prevent other authors using the word "cocky" in a title, then that's something else entirely. If I wrote "The Cocky Billionaire" and was asked to change the title to something else I would be lawyering up at once. I'm not sure exactly what the situation is and there's a lot of noise at the moment, but it does look as if it is the latter situation - and that's very problematic.


----------



## cvwriter

Becca Mills said:


> Can trademarking really force people to change something retroactively?? That seems grossly unfair.
> 
> IANAL, so maybe there's something I'm not getting, but if "space marine" couldn't be successfully defended as a trademark, due to preexisting wide use, how can a word as common as "cocky" be?


I'd think that would be extremely complex in pre-existing uses. If your book is copyrighted under that name, officially, and that title is the ISBN metadata, I'm not so sure how easy it is to change things. I've never done it. Plus, an author will have to rehire their cover designer to make the change of a new titles, and if they use Ingram, PAY for a new upload charge?


----------



## going going gone

Carol Ritter ([email protected]) 

wants to hear from anyone threatened with legal action from this. Romance Writers of America is great.


----------



## guerin

Becca Mills said:


> To ask a larger question:
> 
> Considering just those books that seem to be intentionally mimicking this author's "Cocky" titles, cover layout, and typography (I noticed a few of these in my search), what do y'all think is the best way to respond to that sort of thing? Should successful authors just ignore it? Try to stamp it out, but with a more limited use of trademarking? Some other response?


Well, that was the author's original problem, wasn't it?

I'm sure she noticed that there was an issue with others mimicking her work and she most probably went to a lawyer. The lawyer informed her that her copyright wouldn't protect her but a trademark could. Trademarking is a bit more complicated than registering your copyright for $35 on a government website. I wouldn't be surprised at all that it was the lawyer who decided that TM should be registered for that word, and not her.

I know everyone will think I'm defending her, but I'm trying to give her the benefit of the doubt. I haven't seen a single actual complaint from an author who has received a letter from her. I've searched the web and social media. I can't find any author's first-person account telling us how they received such a letter. I find that a little strange?

What if the ones complaining about this, and the ones that received a notice from the author, were those mimicking her work? That might explain why they are not going public with their claims. It would also justify her actions to me. If that's the case, then they must all be having a good laugh now seeing this author getting dragged down.

It is also possible that she has simply gone too far with this, especially if she's actually sending out notices to every author using that name in their title.

I don't know the whole story, and I don't think any of us that have posted on this subject do either. It just seems to me that we are only considering the second possibility and not the first?


----------



## ........

Why is it the author's name is deleted wiped hidden gone from this thread?

It's public knowledge now. The trademark can be looked up. The author has made a public comment.

Can we just cut to the core of it and openly discuss the trademark and the author?


----------



## Lydniz

guerin said:


> I know everyone will think I'm defending her, but I'm trying to give her the benefit of the doubt. I haven't seen a single actual complaint from an author who has received a letter from her. I've searched the web and social media. I can't find any author's first-person account telling us how they received such a letter. I find that a little strange?


They do exist, but the fact is that a lot of people want a peaceful life and prefer to keep their heads below the parapet, so they won't necessarily go around shouting about it.


----------



## Jena H

Becca Mills said:


> To ask a larger question:
> 
> Considering just those books that seem to be intentionally mimicking this author's "Cocky" titles, cover layout, and typography (I noticed a few of these in my search), what do y'all think is the best way to respond to that sort of thing? Should successful authors just ignore it? Try to stamp it out, but with a more limited use of trademarking? Some other response?


As has been mentioned, the "imitating" of another book's cover look isn't new, and has been done to much bigger, more popular books than these. If anything, having copycats should only increase the popularity of her own books. After all, she could always make her author name a big bigger or bolder or find some way to make her covers even more distinctive.

IMO this move is either majorly-aggressive overreach on the author's part, an innocent (hah) act of frustration that has gone unsurprisingly awry, or a really strange publicity stunt.


----------



## unkownwriter

> Perhaps if she'd only gone after those books that seem to have copied her cover layouts and fonts, asking them to quit mimicking her branding but not bothering with the word "cocky," so long as it wasn't typographically like hers?


I'm thinking that going after someone for copyright infringement is a one at a time deal, while with trademark protection she can hit a group at once and force most people to simply comply since court cases are so expensive. Cease and desist letters are relatively cheap, I imagine. And if she can get Amazon to take the books down, that alone would likely cause some authors to simply cave in so they can get their books back up.

I can see trademarking a specific string of words, such as the exact series title. Or a certain kind of title, the way J K Rowling did, I believe, with the "Harry Potter and the" example. But a single word, that's been commonly used in a genre for decades? No. For example, I could have a series called "The Whispering Woods Mysteries". That I could legitimately trademark. But just "whispering"? Or "woods"? No, no, no.

There's going to be blow back over this. It's not going to be pretty, and I think this author is going to regret her actions in the end.


----------



## Anarchist

Becca Mills said:


> To ask a larger question:
> 
> Considering just those books that seem to be intentionally mimicking this author's "Cocky" titles, cover layout, and typography (I noticed a few of these in my search), what do y'all think is the best way to respond to that sort of thing? Should successful authors just ignore it? Try to stamp it out, but with a more limited use of trademarking? Some other response?


Speaking only for myself, I'd ignore it.

But I'm against IP laws in general.


----------



## ibizwiz

Thanks EB for this timely thread. 

TESS says the title for our fall series is not in use for books, but I actually hadn't looked before today. If the first few books are (as hoped) an underground hit, then the series title will have serious immediate commercial and long-term IP value for our small Indie company. Many thanks!


----------



## 41419

Not wanting to minimize the serious issues all this raises, but I am highly amused by the author crying "bullies" and "witch hunt" in response to the community's reaction.

Now where have I heard that before?


----------



## inconsequential

guerin said:


> I know everyone will think I'm defending her, but I'm trying to give her the benefit of the doubt. I haven't seen a single actual complaint from an author who has received a letter from her. I've searched the web and social media. I can't find any author's first-person account telling us how they received such a letter. I find that a little strange?




__ https://twitter.com/i/web/status/992795087800332288


----------



## 41419

> "...if I sue you I will win all the monies you have earned on this title, plus lawyer fees..."


Delightful.


----------



## Guest

Just to lighten things up a bit, check out this hilarious cover by M. H. Soars: https://www.facebook.com/bookcoverluv/photos/a.2019957528250359.1073741828.1988676604711785/2100538143525630/.

M.H. Soars, if you're reading this -- I have an opening for your book:

"You're cocky," she said looking up from his pet cock.
He grinned cockily. "Sue me."


----------



## Elizabeth Ann West

I literally write in a genre where authors use the exact same character names, stock photos (because how many regency couples are out there?), And even book titles. 

If readers are confused between your books and someone else's ? Publish better.

There is a need for trademarking when something is actually unique to a story world or story series. Not a word in the flipping dictionary.


----------



## jb1111

C. Gold said:


> Nah. The better way to do it would have been to trademark the style she uses on her covers. It's very distinguished, used on all her covers, and worth trademarking to keep copycats from confusing her branding. I'd pay to keep that look unique, too. She got really bad advice if she was told to trademark just the word -- a common word used in romance. That is only going to anger every romance writer who finds out about this whether they use 'cocky' in their series names or not. It's already begun.  Plus everyone else will want the TM to fail because otherwise it will open an entire can of worms as everyone rushes to TM commonly used words and causes no end of mess.


Earlier in this thread it was mentioned that other books have been removed from Amazon. If that isn't reducing competition (even temporarily), I don't know what is.

My point wasn't that her way of using a TM was a _good_ idea; it just appears to me that she is using it in a misguided manner to reduce some competition in her corner of the genre. I could be wrong, but that's what it looks like. Otherwise, I completely agree with you. There was probably a better way to use the TM system.

RE: commonality in genres:
Anyone who writes books in a genre knows that there are often similar titles as well as simliar presentations. For example, half the sci-fi books out there have some spaceship on the cover, and many of them look remarkably similar. TMing a type of spaceship that can be used on a book cover would really crimp some authors.

In erotica, if I had a dollar for every title I've seen with "sharing her" in it, I'd probably be at least $100 richer. Someone could conceivably TM that phrase and cause a lot of issues to a lot of other authors.

There is a lot of commonality in genres. Anyone who writes in a genre knows that. Most of us hopefully just work with it, instead of trying to involve the courts over a couple words. Oh well.


----------



## M T McGuire

Just a quick note, I'm late to the party but I happened to bump into a fairly top-tier intellectual property/technology lawyer in my country - who also does a lot of work internationally on that kind of stuff and he said this. 

Cocky is a common word so it's completely unenforceable and anyone who had the word in their book title before now is exempt because it's pre-existing. Whoever registered it has wasted a lot of money. The reason Kodak was called Kodak was exactly that. So that there was nothing like it, so it could be trademarked and copyrighted easily and infringement was unmistakeable.

Indeed, whoever registered it should sue the lawyer who suggested it.

I hope that helps, 

Cheers

MTM

PS edited because the bit about the lawyer sounded really pompous!


----------



## notenoughcoffee

According to this tweet, she used a font that she would need permission to use in a trademark or copyright anyway. How did her lawyer not ask that as the very first question?

https://twitter.com/courtneymilan/status/992807970130935808


----------



## 75814

M T McGuire said:


> Just a quick note, I'm late to the party but I happened to bump into one of my country's top-tier intellectual property/technology lawyers - who also does a lot of work internationally on that kind of stuff and he said this.
> 
> Cocky is a common word so it's completely unenforceable and anyone who had the word in their book title before now is exempt because it's pre-existing. Whoever registered it has wasted a lot of money. The reason Kodak was called Kodak was exactly that. So that there was nothing like it, so it could be trademarked and copyrighted easily and infringement was unmistakeable.
> 
> Indeed, whoever registered it should sue the lawyer who suggested it.
> 
> I hope that helps,
> 
> Cheers
> 
> MTM


Someone tweeted out the letter she received from this author. The letter was written by the author herself, references the Federal Trademark Commission, and in the letter, she claims that her lawyer has told her that if she brings a suit against this "offending" author, she will win all the monies the title has generated plus legal fees.

Now I'm not a lawyer, but this raises some interesting thoughts. Such as:

1. Why is the author writing cease and desist letters and not the lawyer?

2. The Federal Trademark Commission does not exist. There's the Federal Trade Commission and the United States Patent and Trademark Office, but there is no Federal Trademark Commission.

3. What lawyer would guarantee a client what they would win? That seems pretty irresponsible as even in the event of a ruling in her favor, the judge would still have the authority to determine how much the author is entitled to.

All of this makes me ask the question--is there even an attorney involved or is she just throwing a big name out there in these letters in an effort to scare off the competition?


----------



## DonovanJeremiah

Perry Constantine said:


> All of this makes me ask the question--is there even an attorney involved or is she just throwing a big name out there in these letters in an effort to scare off the competition?


Dingdingding!


----------



## Monique

I believe someone actually contacted the attorney who wrote back. So, I'm pretty sure she actually has one, but is sending out these letters on her own to save money (because there is no actual cause to send them?).


----------



## Elizabeth S.

SummerNights said:


> Eye-opening.
> 
> (It's funny, though, how for such an *established* author, not even her own readers come to her defense on her Twitter and Facebook page.)


Wow...I was giving her the benefit of the doubt that this was just a poor choice and not something malicious. But this is beyond the pale.



> I'm totally baffled by this. Character names are copyrighted? What law is she referring to? I really want to know if there is any truth to this.


This seems to be a legit copyright issue to me IF it's true that the commented-on story uses the same plot as well as the same character names. The couple in her romance was Luna and Jett Cocker...and the couple in this book is Luna and Jett Cocker.


----------



## jb1111

notenoughcoffee said:


> According to this tweet, she used a font that she would need permission to use in a trademark or copyright anyway. How did her lawyer not ask that as the very first question?
> 
> https://twitter.com/courtneymilan/status/992807970130935808


Her TM attorney may have just got her through the TM process. Who knows? I think she may have one -- I saw the name of an attorney in the TM documents linked online.

Her letter to another author (which I saw online somewhere, I think on Twitter) -- where she quotes her attorney as saying she _will _win in court and get "monies" -- is a bit curious also. No attorney worth their salt will say to a client "we _will_ win in court." Well, some might -- but it's not exactly within the code of ethics. There are no guarantees in court, and all attorneys know that.

Of course, she may have misheard her attorney. That can happen, and does happen sometimes.


----------



## Sam Kates

She's getting pushback - my Goodreads feed is full of someone systematically one-starring the author's books.


----------



## Elizabeth S.

SummerNights said:


> It is my understanding that plots are not copyrightable and neither are names, unless they are in the book title, but I may be wrong which is why I'd like to see the law she is referring to.


I should have probably used "plagiarism" instead of copyright. Using the same names (Luna and Jett Cocker are pretty exact...) and a similar plot is something I can understand getting upset over. Using the word "cocky" in a title is not.


----------



## Becca Mills

Sam Kates said:


> She's getting pushback - my Goodreads feed is full of someone systematically one-starring the author's books.


I'm sorry to hear it. That is not an appropriate response to the situation.


----------



## Sam Kates

Becca Mills said:


> I'm sorry to hear it. That is not an appropriate response to the situation.


No, it isn't. Maybe the 1-starrer feels it's the only way she can express her disapproval of the author's tactics. Human nature, eh.


----------



## Atlantisatheart

Sam Kates said:


> She's getting pushback - my Goodreads feed is full of someone systematically one-starring the author's books.


Looks like she's taking heat everywhere. Her books on amazon are getting slammed and it looks like it's not just authors but readers doing it. Her days are numbered, there isn't any damage control for this. All she can do now is start again with a new pen name and hope it doesn't lead back to her.


----------



## Lydniz

Atlantisatheart said:


> Looks like she's taking heat everywhere. Her books on amazon are getting slammed and it looks like it's not just authors but readers doing it. Her days are numbered, there isn't any damage control for this. All she can do now is start again with a new pen name and hope it doesn't lead back to her.


A few "Cocky" satires have also sprung up on Amazon.


----------



## AmpersandBookInteriors

Atlantisatheart said:


> Looks like she's taking heat everywhere. Her books on amazon are getting slammed and it looks like it's not just authors but readers doing it. Her days are numbered, there isn't any damage control for this. All she can do now is start again with a new pen name and hope it doesn't lead back to her.


Mmm...yes... the self destruction has begun.


----------



## Ros_Jackson

Goodreads lists the series under a different series name, not "The Cocky Series". So when was it first released under the latter series name? 

(Edited to remove identifying information, although the cat is probably out of the bag by now).


----------



## Betsy the Quilter

Sam Kates said:


> No, it isn't. Maybe the 1-starrer feels it's the only way she can express her disapproval of the author's tactics. Human nature, eh.


Still not appropriate.

And not directed at your comment, Sam, but since we're discussing the one-starring, I want to warn readers that any call to action to one-star this or any other author's books is a potentially bannable offense here on KBoards. We've deleted one post that came close to a call to action and that member will be warned.

*looks sternly at KBoards members*

Betsy
KB Mod


----------



## inconsequential

The creator of the font used in the TM has stated that he did not give permission for it to be used in a TM:


__ https://twitter.com/i/web/status/992847807722729473


----------



## Elizabeth Barone

Authors should consult with an IP lawyer and get in touch with the RWA ([email protected]) before changing their own books. There's a lot of misinformation going around. The best course of action is to talk to a lawyer if you think you might have an issue. The RWA is collecting info from anyone who's received a cease and desist from the author who filed the trademark. Meanwhile some authors are already changing their titles, and that might not even be necessary.

Please don't panic, call people names, etc. (My FB feed is out of control right now.) Get a consultation with an IP lawyer (they're usually free). Here's where you can find one: https://lawyers.findlaw.com/lawyer/practice/intellectual-property-law

Remember, we're all mature professionals.


----------



## Atlantisatheart

inconsequential said:


> The creator of the font used in the TM has stated that he did not give permission for it to be used in a TM:
> 
> 
> __ https://twitter.com/i/web/status/992847807722729473


Does that mean that the TM is now invalid opening her up to litigation from those authors who have gone to the expense of changing their books? It certainly means a payday for the designer of that font. It's just getting surreal now.


----------



## Becca Mills

Atlantisatheart said:


> Looks like she's taking heat everywhere. Her books on amazon are getting slammed and it looks like it's not just authors but readers doing it. Her days are numbered, there isn't any damage control for this. All she can do now is start again with a new pen name and hope it doesn't lead back to her.


I don't buy it. A good _mea culpa_ and some concrete moves to help those who've been damaged could repair a lot of the situation, IMO.

I mean, she perceived herself as being copied and coat-tailed in ways that felt unfair to her, right? It made her more angry than it should've, given that many successful authors experience that sort of thing, and it probably has little real effect. But whatever -- it ticked her off and she wanted it to stop. She consulted an attorney who suggested trademarking, which wasn't a bad idea, but they overreached by trademarking the word itself, not just as part of a series title and her books' branding, and then trying to get it taken out of other books' titles. She didn't think through the implications of such an act -- what romance will look like if Rosalind James goes out and trademarks "just" and Bella Andre trademarks "in love" and Crystal Kaswell trademarks "dangerous," etc., etc., until _there are no more words_. It's just not tenable ... obviously. But when you're angry, and you're feeling ill-used, it's hard to think through larger implications, so she didn't. But now she understands, and she apologizes. (<--suggested apology, not actual apology!)

I really do think that would go a long way.


----------



## inconsequential

Becca Mills said:


> But now she understands, and she apologizes.


Where has she apologized? On Twitter, she has mocked:

__ https://twitter.com/i/web/status/992855143073943553


----------



## Elizabeth Barone

Ros_Jackson said:


> Goodreads lists the series under a different series name, not "The Cocky Series". So when was it first released under the latter series name?
> 
> (Edited to remove identifying information, although the cat is probably out of the bag by now).


As far as I can tell, according to TESS, she didn't trademark the series name, she trademarked the appearance of the word on her books for branding purposes. There's a lot of misinformation floating around. Remember, anyone can claim anything. Authors who think they might be affected need to talk to an IP lawyer.


----------



## Becca Mills

inconsequential said:


> Where has she apologized? On Twitter, she has mocked:
> 
> __ https://twitter.com/i/web/status/992855143073943553


Um ... I was suggesting what she should do, not quoting her?? If that's not clear, I should revise my post.


----------



## MyraScott

She "helped out with Amazon so the account wasn't shut down"? 

What is it with people who claim to have a special relationship with Amazon and like to send "my lawyer says" letters... hmnn. 

These tactics really are all bluff and bluster.


----------



## Elizabeth Barone

To be fair, I haven't seen her mock, belittle, or call anyone names. That's all been hearsay. She might not seem to understand exactly what a trademark is, but most of the people talking about this don't appear to, either. On the flip side, I've seen a lot of "professionals" publicly calling her some pretty nasty names.


----------



## Michaela Strong

She's cracking jokes about how fun the mess she created is, all while sending C&D letters to authors scaring them into taking down their books. She may not be directly mocking anyone but she's certainly making a mockery of the situation.


----------



## Monique

I haven't seen this posted yet, but always insightful Courtney Milan posted a summary of events:

https://twitter.com/courtneymilan/status/992868032467812352


----------



## GeneDoucette

Monique said:


> I haven't seen this posted yet, but always insightful Courtney Milan posted a summary of events:
> 
> https://twitter.com/courtneymilan/status/992868032467812352


This is really entertaining.


----------



## Lydniz

SummerNights said:


> OMG, Courtney Milan wins the Internet!


She knows how to deliver a punchline.


----------



## ........

Fairly astonishing that she used a licensed font to write "Cocky" but neither she nor the lawyer involved bothered to check the font licensing terms which specifically forbid trademarks being created using the font. The font designer has confirmed this.

This is the equivalent of using Comic Sans and trademarking without bothering first to check if you can.

There are so many genres out there that if similar trademarks were granted would be decimated in terms of titles. 

I'd certainly be interested to know what information was handed over to obtain the trademark. Is there any obligation to advise that other romance titles with Cocky in the title were published prior to hers? What are the obligations on the applicant?


----------



## J.J. Fitch

Monique said:


> I haven't seen this posted yet, but always insightful Courtney Milan posted a summary of events:
> 
> https://twitter.com/courtneymilan/status/992868032467812352


This is hilarious!

But seriously - thank you to the Kboards admin for allowing us to hold a discussion on the topic. Regardless of the author or specific word, this precedent affects us all.


----------



## Usedtoposthere

I suspect Ms. Hopkins is about to get her very own cease & desist letter. 

Live by the sword, die by the sword. 

Just epic. 

Very sorry for all the chaos and disruption to so many innocent authors, however. I know how upsetting that sort of thing can be.


----------



## 97251

J.J. Fitch said:


> But seriously - thank you to the Kboards admin for allowing us to hold a discussion on the topic. Regardless of the author or specific word, this precedent affects us all.


Indeed. Imagine if someone trademarks kingdom, star, magic, or something like that. I'm thinking about sci-fi and fantasy here. Lots of common words.

This could set a very dangerous precedent.

I understand that the TM for a common work can be contested, but by the time all this mess is solved, a lot of damage can be done.

From what I read, this author has claimed copyright infringement (which she shouldn't be doing, if it's about a TM) and at least one author has had a paperback pulled from Amazon. So she's hurting authors.

Now ok, on a quick Amazon search, I did find some novels with titles and typography that looked like her books. I wouldn't know who came first, though, and plus many romance covers have similar font styles. So I'm not sure if there are books copying hers, or it it's just a genre thing.

I don't know, has someone thought of trademarking the bare chested males?

And you know, what about in sci-fi, all those covers with the spaceship, a planet on the background and similar fonts? A lot of them look the same.

In UF, it's also similar fonts and colors, and to make matters worse, many designers are using the same stock. Titles are not that different either.

So I think even the claim that there are authors copying her with the title, cover style and font choices is a little complicated. And I think it's a problematic precedent for all genres.


----------



## Ann in Arlington

There's a whole thread in the book corner here with book covers that all have the same girl in a blue dress looking over her shoulder.

Just sayin'.


----------



## Becca Mills

Day Leitao said:


> From what I read, this author has claimed copyright infringement (which she shouldn't be doing, if it's about a TM)


I may not have a grasp on all the nuances of this situation, but my impression is that the copyright issue is separate and different. If so, let's be careful not to conflate the two.

Sent from my SM-G930V using Tapatalk


----------



## 97251

My source for the comments on copyright infringement is a comment on this post:

http://legalinspiration.com/?p=503

But of course, this is an anonymous comment and we can't know anything for sure.


----------



## Forgettable

.


----------



## 97251

Ok, I shouldn't be reading about this, but somehow this case interested me.

The Cocky Author™ has a blog post from January, 2018 explaining about her process of shooting her own covers. So far so good.

But when she explains the reasons, she claims that other authors were copying her on purpose by choosing the same images . She also says that her readers got upset when they saw her "characters" ( the stock images) on other people's covers or ads.

She claims:



> But their instincts that some - not all, but some - of these authors were copying me on purpose, were founded in truth.


I'm actually worried about this author. Really worried.

And still, this is the kind of thing that can happen in any genre where there are similar titles, similar font styles, similar images... So that's why this trademark situation is problematic.


----------



## Crystal_

Reformed Pantser said:


> Just to lighten things up a bit, check out this hilarious cover by M. H. Soars: https://www.facebook.com/bookcoverluv/photos/a.2019957528250359.1073741828.1988676604711785/2100538143525630/.
> 
> M.H. Soars, if you're reading this -- I have an opening for your book:
> 
> "You're cocky," she said looking up from his pet cock.
> He grinned cockily. "Sue me."


Hmm... I can't say I'm impressed as multiple people have suggested to me that this author copied my series asthetic. I thought it was my ego tripping, but I'm not so sure. I'm not a huge author by any means but for awhile I was putting out the most successful indie series in my niche. I had a lot of people who were obviously riffing off my covers. Sometimes it was too close for comfort.

I don't think there's anything you can do about copycats. I do sympathize with the issue, but I don't think the author is going about this in the right way.

That said, I also think getting catty about it and calling her names is mean and unproductive. I haven't seen that here but I saw it everywhere on social media.


----------



## C. Gockel

LMareeApps said:


> The other issue that has people more emotionally invested than they would otherwise be ...


I think the other issue is the potential of people with deep pockets to basically come after just about ANYONE.
The precedent is frightening.


----------



## MyCatDoesNotConsent

Я не согласен с новым TOS

Я не согласен с новым TOS√√√


----------



## cvwriter

Ann in Arlington said:


> There's a whole thread in the book corner here with book covers that all have the same girl in a blue dress looking over her shoulder.
> 
> Just sayin'.


I haven't even gone over to check and I'm pretty sure I know what dress pic that is.


----------



## Forgettable

.


----------



## Gentleman Zombie

I really don't care about this one author in particular. I'm more concerned that I (and many other indies) have been pretty lazy when it comes to protecting our intellectual property.  I'm small potatoes-- but what's to stop some big media company from swooping in and stealing my work? Or sending me a surprise cease and desist because my work is similar to theirs? 

I'm not even close to being a lawyer, but this mess has prompted me to research ways to establish a defensible copyright.  Those of us who've been around a long time forget this is still a very young industry. But it's marching towards the big leagues-- and a lot of us have taken no steps to protect our intellectual property. That way if we get a crazy legal notice we can counter it with a "no way my copyright was officially established on *insert date*" response.


----------



## ........

I'm sure over the next few weeks people will be digging up cover designs that predate hers... the scripty word profession/relationship format for titles has been around for a long time.

I find it extremely hard to believe a large number of readers were confused by other titles with cocky in them. And confused to the point that the author had to get a trademark to prevent such widespread confusion.

Given she has involvement in film perhaps the move was more pushed by trying to sell rights or something similar.


----------



## ........

Gentleman Zombie said:


> I really don't care about this one author in particular. I'm more concerned that I (and many other indies) have been pretty lazy when it comes to protecting our intellectual property. I'm small potatoes-- but what's to stop some big media company from swooping in and stealing my work? Or sending me a surprise cease and desist because my work is similar to theirs?
> 
> I'm not even close to being a lawyer, but this mess has prompted me to research ways to establish a defensible copyright. Those of us who've been around a long time forget this is still a very young industry. But it's marching towards the big leagues-- and a lot of us have taken no steps to protect our intellectual property. That way if we get a crazy legal notice we can counter it with a "no way my copyright was officially established on *insert date*" response.


This isn't really some groundbreaking trademark that will alter the landscape forever. It's fairly typical of a Government process that often produces stupid outcomes. The patent system has seen this plenty of times with people getting patents just to show how poor the system functions.

All that happened here is that no one knew the trademark application was underway. No one knew during the opposition period. If anyone who'd published a Cocky Whatever book prior to her had filed an opposition the application would have fallen over probably.


----------



## ........

https://the-digital-reader.com/2018/05/05/cockygate-faleena-hopkins-has-registered-a-trademark-on-cocky-and-is-using-it-to-threaten-other-romance-authors


----------



## ........

Another article: http://www.pajiba.com/think_pieces/cocky-writer-romance-author-faleena-hopkins-trademarks-cocky-and-tries-to-shut-down-others-using-the-word.php


----------



## marissa_lopez

Reformed Pantser said:


> Just to lighten things up a bit, check out this hilarious cover by M. H. Soars: https://www.facebook.com/bookcoverluv/photos/a.2019957528250359.1073741828.1988676604711785/2100538143525630/.
> 
> M.H. Soars, if you're reading this -- I have an opening for your book:
> 
> "You're cocky," she said looking up from his pet cock.
> He grinned cockily. "Sue me."


The cover is cute


----------



## The one with all the big dresses on the covers

cvwriter said:


> I haven't even gone over to check and I'm pretty sure I know what dress pic that is.


Ok, now I'm curious  Can we get a link to this thread?

/thread derail


----------



## Rob Martin

I just scrolled through the twitter feed, and wow...just wow.


----------



## Jan Hurst-Nicholson

I wonder what this has done for her book sales


----------



## Forgettable

.


----------



## Rob Martin

LMareeApps said:


> I don't think it's the same thread mentioned above, but this post refers to the thread mentioned, and shows all the covers with the blue dress:
> https://www.kboards.com/index.php/topic,246616.msg3434063.html#msg3434063


LMAO. It was like looking at a room full of mirrored reflections, lol.


----------



## Kal241

Bards and Sages (Julie) said:


> The Court of Public Opinion can be much stronger than a Court of Law. If enough impacted authors made public statements of what was happening, the author might well be embarrassed into backing down. It has been known to happen when enough bad publicity hits that a TM holder will back off an obviously poorly thought-out enforcement.
> 
> Trademarking the phrase and trade dress (font and color choices) is one thing, and that isn't a problem. Attacking ANY romance author with the word "cocky" in the title needs some public ridicule.


I seem to recall the book _Spots The Space Marine_ being caught up in a trademark fiasco like this when Games Workshop claimed trademark of the term "Space Marine." Lots of authors cried out in protest. Spot wasn't the only victim, though eventually he did return after GW failed to enforce on a cease and desist order and Amazon republished the book.


----------



## ........

Excellent commentary on The Passive Voice: http://www.thepassivevoice.com/trademark-cockup/


----------



## PearlEarringLady

........ said:


> Excellent commentary on The Passive Voice: http://www.thepassivevoice.com/trademark-cockup/


Yes, an aspect that no one else has picked up on, viz, that trademarks belong to the first to *use* them, regardless of when or if they register them. The mere act of registration doesn't confer any rights if there was a prior user.


----------



## Hoop

Elizabeth Barone said:


> To be fair, I haven't seen her mock, belittle, or call anyone names. That's all been hearsay. She might not seem to understand exactly what a trademark is, but most of the people talking about this don't appear to, either. On the flip side, I've seen a lot of "professionals" publicly calling her some pretty nasty names.


Check her Facebook author page, where she puts up a photo of Jamila Jasper's cover and then refers to Jamila as "hacks like these".


----------



## Ann in Arlington

MelanieCellier said:


> Ok, now I'm curious  Can we get a link to this thread?
> 
> /thread derail


It's in the very long thread about historical romance. Here's a link to one post with lots of examples: http://www.kboards.com/index.php/topic,63555.msg3531507.html#msg3531507

There were others earlier in the thread but that was the first one I located.



LMareeApps said:


> I don't think it's the same thread mentioned above, but this post refers to the thread mentioned, and shows all the covers with the blue dress:
> https://www.kboards.com/index.php/topic,246616.msg3434063.html#msg3434063


oh, yeah . . .that's a great one as well.


----------



## writerc

Sorry if this has already been linked previously...but I just saw this...

https://www.amazon.com/C-cky-Author-Fettucine-Holliday-ebook/dp/B07CVSK4YL/ref=cm_cr_arp_d_product_top?ie=UTF8


----------



## ibizwiz

It seems clear that Ms. Hopkins will be thwarted in her attempt to thwart her targets. I'm much more concerned now for the authors who've been penalized in any way by unthinking (or cowardly) Amazon due to her shenanigans. Is someone making a list of these victims so that we can petition the 'Zon to make things right? Surely a separate Move-On petition signed by ten thousand readers and authors would force Amazon to make this a priority?


----------



## Atlantisatheart

Acheknia said:


> Not sure if this has been mentioned, there's a petition on Move On.
> 
> https://petitions.moveon.org/sign/cancel-faleena-hopkins?source=s.fb&r_hash=vIfi2dpj


It's so good to see the indie community standing together to back their own once more. We need to stamp out bad practice wherever we find it for the sake of ourselves and those that come after us.


----------



## Hoop

krylo said:


> the claims that Jasper's book was the driving force behind this catastrophic choice boggles my mind.


I saw that claim, and she must be psychic, or a time-traveler.
She filed for the trademark in the fall of last year. Jasper didn't publish her book until this year.


----------



## Concerned writer

I'm not sure if this has already been mentioned, but her Cocky Quarterback book uses the Atlanta Falcons and the Super Bowl.  Correct me if I'm wrong, but isn't the NFL pretty serious about protecting their own trademarks and brand?


----------



## Shelley K

Elizabeth Barone]To be fair said:


> Check her Facebook author page, where she puts up a photo of Jamila Jasper's cover and then refers to Jamila as "hacks like these".


[/quote]

Hearsay is something you hear from others that you cannot substantiate, so this isn't that. All you have to do is look and her bad behavior is out there, easy enough to spot. I'm horrified by some of the particularly vicious things people are saying to her and about her, I don't think it reflects very well on them as professionals and maybe people, but that in no way excuses her.

I'm in awe that she's done this, but at the same time I feel kind of bad for her, because I don't think she's mentally grasping the uproar she's caused. She seems to be riding high on a wave of overblown self-importance and grandeur with no real sense of the consequences of her statements and actions. Those are rarely good signs in the big scheme of things. And I think she's set herself up for a heck of a fall from which I'd much rather her find a softer landing than not so she can recover and move on rather than end up destroyed as so many people seem to wish for her. I don't think she understands the enormity of the mistake she's made, and there can be a lot of reasons for that.

Maybe my compassion is misplaced. I've been wrong before. But I still cringe when I see people, under their professional names, saying things in the heat of the moment that, man, maybe they shouldn't be putting out there into the unforgiving, never forgetting interwebz.

_Edited. PM me if you have any questions. --Betsy/KB Mod_


----------



## J.J. Fitch

Shelley K said:


> Hearsay is something you hear from others that you cannot substantiate, so this isn't that. All you have to do is look and her bad behavior is out there, easy enough to spot. I'm horrified by some of the particularly vicious things people are saying to her and about her, I don't think it reflects very well on them as professionals and maybe people, but that in no way excuses her.
> 
> I'm in awe that she's done this, but at the same time I feel kind of bad for her, because I don't think she's mentally grasping the uproar she's caused.


Agreed. I'm inclined to give her the benefit of the doubt and just hope that she realizes what exactly is so wrong about this. I hate seeing so much hatred flung around.

Does anyone know if trademarks can be enforced retroactively? I've seen a few people mention that they can't and it seems that Miss Jasper's novel was published prior to the trademark being granted.


----------



## David VanDyke

Shelley K said:


> She seems to be riding high on a wave of overblown self-importance and grandeur with no real sense of the consequences of her statements and actions. ... And I think she's set herself up for a heck of a fall ... I don't think she understands the enormity of the mistake she's made, and there can be a lot of reasons for that.


A story as old as mankind.

"Whom the gods would destroy they first make mad." - ancient proverb, apocryphal provenance

"Pride goes before destruction, and a haughty spirit before a fall." - Proverbs 16:18


----------



## MyCatDoesNotConsent

Я не согласен с новым TOS
√ıÅÎ


----------



## Betsy the Quilter

Let's not make personal comments; discuss the issues and how this impacts the indie community.  Aim high, folks.  We're reviewing...posts may be edited or removed.  If your post disappears, feel free to PM me.

Betsy
KB Mod


----------



## J.J. Fitch

I've been searching e-book trademarks to see exactly what is the standard. Most of them are unique titles and if it's a single word, it's an unusual work or made up one.

By the way, I stumbled upon a trademark made at the same time as "Cocky." It's for: THE KURTHERIAN GAMBIT          Register # 5445957

So, it seems that this is going to be happening a lot more now. It's definitely time that we understand the implications. Obviously, something like The Kurtherian Gambit wouldn't cause an uproar. It's so unique. But many more authors will be rushing to get their trademarks as well. 

ETA:
Also found this trademark: 20 BOOKS TO 50K    Serial # 87342653


----------



## David VanDyke

Evelyn Alexie said:


> Merriam Webster tweeted their Word of the Day yesterday: Cockalorum.
> 
> Definition of cockalorum
> 
> plural cockalorums
> 1 : a boastful and self-important person
> 2 : leapfrog
> 3 : boastful talk


They must have done a last-minute insert? Here's their standard WOD site:

https://www.merriam-webster.com/word-of-the-day/calendar

No cockalorum.  But it's real:

https://www.merriam-webster.com/dictionary/cockalorum


----------



## ShayneRutherford

Shelley K said:


> Maybe my compassion is misplaced. I've been wrong before. But I still cringe when I see people, under their professional names, saying things in the heat of the moment that, man, maybe they shouldn't be putting out there into the unforgiving, never forgetting interwebz.


Getting that trademark didn't happen in the heat of the moment. It took a while.


----------



## MyCatDoesNotConsent

√√
Я не согласен с новым TOS


----------



## MyCatDoesNotConsent

Я не согласен с новым TOS


----------



## Rick Gualtieri

J.J. Fitch said:


> I've been searching e-book trademarks to see exactly what is the standard. Most of them are unique titles and if it's a single word, it's an unusual work or made up one.
> 
> By the way, I stumbled upon a trademark made at the same time as "Cocky." It's for: THE KURTHERIAN GAMBIT Register # 5445957
> 
> So, it seems that this is going to be happening a lot more now. It's definitely time that we understand the implications. Obviously, something like The Kurtherian Gambit wouldn't cause an uproar. It's so unique. But many more authors will be rushing to get their trademarks as well.
> 
> ETA:
> Also found this trademark: 20 BOOKS TO 50K Serial # 87342653


People trademarking series name or made up words isn't now and will probably never be the issue (unless someone maybe tries to be cute and simply calls their series "Reverse Harem", "Vampire", or "The"). The issue here is the overreaching and going for a single common word, and claiming it defines their books and theirs alone.

That's the real issue to worry about here. Someone trademarking "The love muffins series", isn't damaging, but someone attempting to trademark just "love" is.


----------



## J.J. Fitch

Rick Gualtieri said:


> People trademarking series name or made up words isn't now and will probably never be the issue (unless someone maybe tries to be cute and simply calls their series "Reverse Harem", "Vampire", or "The"). The issue here is the overreaching and going for a single common word, and claiming it defines their books and theirs alone.
> 
> That's the real issue to worry about here. Someone trademarking "The love muffins series", isn't damaging, but someone attempting to trademark just "love" is.


Obviously, which is why I said it wouldn't cause an uproar. But we'll definitely see more people rushing to trademark. And the precedent of "cocky" could make things complicated.


----------



## dgcasey

EB said:


> It appears that an author has trademarked the mark "cocky" for "A series of books in the field of romance" and "A series of downloadable e-books in the field of romance."


This sounds like something I ran into a few years ago when I was designing t-shirts and posters at Cafepress. Some jack*** was litigating against anyone that created a design with the word _CAUTION_ in it. I don't know if it's still the case, but it seems to me that this kind of thing should not be allowed and should be tossed out of court, sight unseen.


----------



## My Dog&#039;s Servant

J.J. Fitch said:


> So, it seems that this is going to be happening a lot more now. It's definitely time that we understand the implications.


This definitely should be the point of the conversation.

Anderle is certainly not the first to trademark elements that are clearly unique to him and to his published work. In his case, they are easily distinguishable and 100% unique to him--at least as phrases and used in the specific circumstances of his publishing efforts. The question is, where does a reasonable line get drawn?

Anybody know how this has been handled in the Amazon Worlds world? If any series/world title was trademarked, who did the trademarking and on whose behalf? How is this covered in the contracts between Amazon, the world's original creator, and the writers who want to write in that world?


----------



## JWright

In general, trademarking seems to be getting out of hand.  I'm in the Amazon Merch program for the t-shirts and people are trademarking the most common of words and phrases to the point that it's ridiculous.  I'm not really active in it, but in order to put up a t-shirt on Amazon you have to do trademark searches and if there is a trademark for a word or phrase you can't use it on your t-shirt and it also cannot appear anywhere in your product description.  That sounds reasonable that you shouldn't be able to use someone else's established brand, but if you look at what has and is being trademarked it is to the point of absurdity.  Looks like it could be headed that way with books too.  I'm not sure how unique a series name would have to be to get a trademark granted, but it doesn't seem that stringent - based on what I have seen for t-shirts and this recent one of "cocky".  Whether it would hold up or not to a legal challenge is a different story.  Either way, not a good trend in my opinion.


----------



## Rick Gualtieri

J.J. Fitch said:


> Obviously, which is why I said it wouldn't cause an uproar. But we'll definitely see more people rushing to trademark. And the precedent of "cocky" could make things complicated.


Oh no doubt, which is why I personally think this big blowup that's been going on all weekend is important. There are plenty out there hoping to sweep this under the rug (some using the guise that the author in question is being "bullied") and I can't help but think there's the ulterior motive that at least some of them hope her gambit succeeds and opens the door to their own machinations.


----------



## C. Gockel

J.J. Fitch said:


> By the way, I stumbled upon a trademark made at the same time as "Cocky." It's for: THE KURTHERIAN GAMBIT Register # 5445957
> 
> So, it seems that this is going to be happening a lot more now. It's definitely time that we understand the implications. Obviously, something like The Kurtherian Gambit wouldn't cause an uproar. It's so unique. But many more authors will be rushing to get their trademarks as well.
> 
> ETA: Also found this trademark: 20 BOOKS TO 50K Serial # 87342653


No one should even pretend that a trademark for a SERIES is the same as trademarking a single word. Craig and Michael are not going after people with 20 in their* titles* or Gambit.

And both are too business savvy to do so. Here is an interesting article on a similar case of a woman trademarking the word "Hon." She nearly destroyed her business--and has become an example in business schools of how not to handle trademark. http://baltimorepostexaminer.com/cafe-hon-gordon-ramsay-fight-liberate-word-revisited/2014/04/16


----------



## J.J. Fitch

C. Gockel said:


> No one should even pretend that a trademark for a SERIES is the same as trademarking a single word. Craig and Michael are not going after people with 20 in their* titles* or Gambit.
> 
> And both are too business savvy to do so. Here is an interesting article on a similar case of a woman trademarking the word "Hon." She nearly destroyed her business--and has become an example in business schools of how not to handle trademark. http://baltimorepostexaminer.com/cafe-hon-gordon-ramsay-fight-liberate-word-revisited/2014/04/16


I don't think anyone would've batted an eye had she simply stopped with "Cocker Brothers" or even "Cocky Brothers". But to own a single (and common) word is crazy.

_Edited. Drop me a PM if you have any questions. - Becca_


----------



## 97251

J.J. Fitch said:


> Obviously, which is why I said it wouldn't cause an uproar. But we'll definitely see more people rushing to trademark. And the precedent of "cocky" could make things complicated.


The danger of this type of behaviour and threats being replicated affects all creative arts.

I feel sorry for this author, because I don't think anyone makes poor choices in a vacuum, and if they make them in a vacuum, it's because they don't have a decent support network. Still, I hope someone with big pockets causes her severe legal consequences, so that it sets an example nobody will want to follow.

The fact is that she's harming every single romance author and romance publisher, because, if her enforcement of her TM holds, nobody will be able to use a common word in a title.

Next thing we'll see people trademarking alpha, billionaire, and who knows what. I guess books will have ISBNs or Asins only, since all words will be taken.

Oh, of course, people will trademark cover styles, including font choice and image placement, so I assume covers will be gone as well.

Entire subgenres could be threatened, and some authors could try to monopolize entire subgenres with similar moves.

So this has to be stopped.

I read rumours that the Big 5 are also going to get involved as well. I do hope so.


----------



## katrina46

Becca Mills said:


> Dibs on "hot."


That reminds when Paris Hilton said she wanted to trademark the phrase, "That's hot." It seemed ridiculous because she hardly invented that phrase.


----------



## J.J. Fitch

Day Leitao said:


> The danger of this type of behaviour and threats being replicated affects all creative arts.


Exactly!

It's so weird to me because I belong to a lovely Facebook group where it seems like everyone in there is writing Billionaire stories and they're all helping each other to put out the very best book possible. Nobody there is even considering trademarking the word "Billionaire," even though some had established series long before the others. I've often heard that it's an uphill battle for all of us and that we aren't each other's competition. It would seem much wiser to help each other get to the top of the mountain.


----------



## MM3313

Rick Gualtieri said:


> Oh no doubt, which is why I personally think this big blowup that's been going on all weekend is important. There are plenty out there hoping to sweep this under the rug (some using the guise that the author in question is being "bullied") and I can't help but think there's the ulterior motive that at least some of them hope her gambit succeeds and opens the door to their own machinations.


Very well said. Hopefully the end result of this is nothing more than a lesson for people on what NOT to do. It's so discouraging to see something like this; even in my spot as someone working to learn and move toward releasing my own work for the first time later this year, it's very clear that the community at large is so supportive and very much has a "watch each other's back" mentality, so seeing someone trying to help themselves while hurting others in a way like this is just awful.


----------



## J.J. Fitch

katrina46 said:


> That reminds when Paris Hilton said she wanted to trademark the phrase, "That's hot." It seemed ridiculous because she hardly invented that phrase.


Or when Taylor Swift tried to trademark "This Sick Beat." There was a lot of backlash for that as well. I'm not sure if she succeeded.


----------



## C. Gockel

I'm in groups, that for legal reasons, won't allow discussion of this sort of thing. There should definitely be no name calling. There should be no move to 1 star, to vote up 1 star reviews, or to go after the person's livelihood, as that can get you sued. It's hard to have admins to keep such chatter (and links) out of discussions. There are ways to protest the trademark without going after the author herself. I understand that it can still be revoked, and I'm hopeful that happens.

_Edited to delete quoted post. Drop me a PM if you have any questions. - Becca_


----------



## Rick Gualtieri

J.J. Fitch said:


> It's so weird to me because I belong to a lovely Facebook group where it seems like everyone in there is writing Billionaire stories and they're all helping each other to put out the very best book possible. Nobody there is even considering trademarking the word "Billionaire," even though some had established series long before the others. I've often heard that it's an uphill battle for all of us and that we aren't each other's competition. It would seem much wiser to help each other get to the top of the mountain.


That's definitely one of the upsides of indie publishing. There's tons of awesome people here, who are just as happy to show their readers your book as they are their own. There's so many trying to help build each other up, that it stinks when we have to devote our energies to the few (yet overwhelmingly loud) voices trying to claim the entire pie for themselves.


----------



## C. Gockel

J.J. Fitch said:


> Or when Taylor Swift tried to trademark "This Sick Beat." There was a lot of backlash for that as well. I'm not sure if she succeeded.


According to Rolling Stone, she succeeded. At least she didn't trademark "Beat."


----------



## katrina46

J.J. Fitch said:


> Exactly!
> 
> It's so weird to me because I belong to a lovely Facebook group where it seems like everyone in there is writing Billionaire stories and they're all helping each other to put out the very best book possible. Nobody there is even considering trademarking the word "Billionaire," even though some had established series long before the others. I've often heard that it's an uphill battle for all of us and that we aren't each other's competition. It would seem much wiser to help each other get to the top of the mountain.


There are two types of writers. The ones who want to be successful doing something they love and the ones who don't have any passion at all for writing, but they're great marketers who approach it as strictly business. The latter isn't necessarily a bad thing until they start pulling these tactics. Some people do see you as competition because you are if all they care about is selling the most books possible. Not everyone wants to see other people at the top. That's why we have all the scammers in KU, unfortunately.


----------



## Becca Mills

An FYI for newer members: KBoards has a long-standing rule known as "WHOA," which stands for "what happens on Amazon [stays on Amazon]," developed for the Amazon forums but applying to all other sites as well. It's about not importing disagreements from other sites to KB. This would include criticism of moderation decisions on other sites -- it's just not our business. Along these lines, I've made some edits.


----------



## katrina46

J.J. Fitch said:


> Or when Taylor Swift tried to trademark "This Sick Beat." There was a lot of backlash for that as well. I'm not sure if she succeeded.


Oh, yeah, I forgot about that one.


----------



## katrina46

Lydniz™ said:


> Ouch. It looks like she's getting backlash.
> 
> _Edited to remove link from quote. Drop me a PM if you have any questions. - Becca_


Yeah, there have been plenty of examples as to why it's not good to get a bunch of people angry with you online, especially if you're messing with their money. I've seen careers absolutely destroyed on Goodreads over less.


----------



## anotherpage

I find it sad that an author would go to these lengths to try and push out other authors from Amazon because she sees them as competition. ( for use of a word lol. That's crazy)

However, it wouldn't be the first time jealous authors have raised their heads because they want to dominate a genre.

Childish really.


----------



## katrina46

Day Leitao said:


> The danger of this type of behaviour and threats being replicated affects all creative arts.
> 
> I feel sorry for this author, because I don't think anyone makes poor choices in a vacuum, and if they make them in a vacuum, it's because they don't have a decent support network. Still, I hope someone with big pockets causes her severe legal consequences, so that it sets an example nobody will want to follow.
> 
> The fact is that she's harming every single romance author and romance publisher, because, if her enforcement of her TM holds, nobody will be able to use a common word in a title.
> 
> Next thing we'll see people trademarking alpha, billionaire, and who knows what. I guess books will have ISBNs or Asins only, since all words will be taken.
> 
> Oh, of course, people will trademark cover styles, including font choice and image placement, so I assume covers will be gone as well.
> 
> Entire subgenres could be threatened, and some authors could try to monopolize entire subgenres with similar moves.
> 
> So this has to be stopped.
> 
> I read rumours that the Big 5 are also going to get involved as well. I do hope so.


I would feel for her. She's getting a lot of backlash, but I find it hard to believe she didn't have some notion of the harm she'd do to other authors. I do think, though, that she had no idea she'd get this kind of backlash. They're being quite brutal on Goodreads. While she can probably get the 1 stars removed from her Amazon page, it can be much harder to have them taken down from Goodreads. I think in that respect she was living in a vacuum, just not knowing what she was walking into.


----------



## ........

J.J. Fitch said:


> I've been searching e-book trademarks to see exactly what is the standard. Most of them are unique titles and if it's a single word, it's an unusual work or made up one.
> 
> By the way, I stumbled upon a trademark made at the same time as "Cocky." It's for: THE KURTHERIAN GAMBIT Register # 5445957
> 
> So, it seems that this is going to be happening a lot more now. It's definitely time that we understand the implications. Obviously, something like The Kurtherian Gambit wouldn't cause an uproar. It's so unique. But many more authors will be rushing to get their trademarks as well.
> 
> ETA:
> Also found this trademark: 20 BOOKS TO 50K Serial # 87342653


Good find. Where were you doing these searches?

When I read that Faleena said others were doing it I immediately guessed the 20Booksto50K group.

Of course there is a huge difference between The Kutherian Gambit being trademarked and "Cocky".

I'm sure people will be scouring those trademark lists for the eBook and book categories now this has happened. I wonder how many other authors are trying to quietly wait out the opposition period on common words?


----------



## C. Gold

J.J. Fitch said:


> Exactly!
> 
> It's so weird to me because I belong to a lovely Facebook group where it seems like everyone in there is writing Billionaire stories and they're all helping each other to put out the very best book possible. Nobody there is even considering trademarking the word "Billionaire," even though some had established series long before the others. I've often heard that it's an uphill battle for all of us and that we aren't each other's competition. It would seem much wiser to help each other get to the top of the mountain.


I love billionaire romances and read a ton of them. One author alone couldn't satisfy because the number would be too few and/or I'd get fatigued with just one flavor of writing style. I think it's very beneficial to have many authors writing in the same space and view words like billionaire or cocky or bad boy as a tag of what the hero is, not a trademark. The more you can help one another put out good billionaire stories, the happier your readers are.


----------



## MM3313

katrina46 said:


> I would feel for her. She's getting a lot of backlash, but I find it hard to believe she didn't have some notion of the harm she'd do to other authors. I do think, though, that she had no idea she'd get this kind of backlash. They're being quite brutal on Goodreads. While she can probably get the 1 stars removed from her Amazon page, it can be much harder to have them taken down from Goodreads. I think in that respect she was living in a vacuum, just not knowing what she was walking into.


I completely agree that there's a good chance she didn't understand the magnitude of what she was doing at the time, but what's unfortunate is, looking at her twitter, it seems like she still doesn't understand what she did wrong (or even worse, doesn't care).


----------



## katrina46

MM3313 said:


> I completely agree that there's a good chance she didn't understand the magnitude of what she was doing at the time, but what's unfortunate is, looking at her twitter, it seems like she still doesn't understand what she did wrong (or even worse, doesn't care).


I visited her Facebook. She doesn't like the backlash, but claims she did nothing to deserve it in a nutshell. I definitely get the feeling she doesn't get it.


----------



## J.J. Fitch

........ said:


> Good find. Where were you doing these searches?


You can search on the USPTO website here https://www.uspto.gov/trademarks-application-process/search-trademark-database. I searched with the term "e-book" and it came up with over 7,000 responses. I got through about 1000 of them before I had to call it quits.


----------



## Used To Be BH

Am I alone in thinking the trademark could use some revising? It never occurred to me that people could potentially trademark common words or trademark phrases that are relatively common and that they didn't create. Apparently, at least in some cases, they can.

At the very least, one would hope that whoever evaluates trademark applications would do some research to see if the word or phrase is already in common use, particularly in the same context. 

I toyed with the idea of trademarking my series name. I figured it probably wasn't worth the effort. Then a trad published series used the same name--four years after I started using it. Legally, of course, the publisher can, since I didn't trademark it, but it irks me. When I'm picking titles and series names, I always at least search on Amazon to see if they're already in use. The one time I forgot and then realized I'd used one that was already in use, I immediately changed mine. It seemed rude not to.

I wonder if the publisher who used the same name could trademark it out from under me, even though I used it four years earlier. That wouldn't be good. Of course, even if I had trademarked it, would I have really wanted to get into legal wrangling with a publisher? Probably not. Neither scenario appeals to me.


----------



## C. Gockel

Bill Hiatt said:


> Am I alone in thinking the trademark could use some revising?


Someone in another group said that the Trademark office is supported by fees from applicants ... that gives them an incentive to grant trademarks. Quite the conflict of interest there.


----------



## Guest

Bill Hiatt said:


> Am I alone in thinking the trademark could use some revising? It never occurred to me that people could potentially trademark common words or trademark phrases that are relatively common and that they didn't create. Apparently, at least in some cases, they can.


Both trademark and patent law in the U.S. is terribly abused because both offices are underfunded, understaffed, and thus often don't have due-diligence before validating trademarks/patents. Add to this the fact that, in both cases, the window of opportunity to review potential marks/patents is so narrow (you legitimately would need a team of full-time employees to do this as you only have 30 day review period.) and discovering a bad trademark after the fact costs money to even report it. One way to fix trademark would be to impose something similar to what happens in most states with a trade name: the applicant has to advertise the fact that they intend to do business under that name. On the state level, it normally means you are required to place ads in media local to where you will be doing business so that other businesses with similar names in the area can contest it. Forcing someone applying for a trademark to place advertisments in media related to the mark would possibly create a stop-gap that would help alert people. Heck, it could even be done with a Twitter feed using hastags #ebook #trademark #cocky or something with a link to the notice. It would just need to be something easily accessible to normal people that wouldn't require someone culling the database on a government website a lot of people don't even know exists.


----------



## unkownwriter

> If readers are confused between your books and someone else's ? Publish better.


Exactly.

I don't want to see people calling her names or one-starring her books, or any other retaliatory action. I want the authors who've been affected by this to contact the RWA, and let them put their organization behind the effort to have this trademark overturned. If this author has any sense, she won't let it get as far as a courtroom, but will back off and do the right thing. Anyone else thinking it would be a good idea to trademark common words or phrases should rethink that position.


----------



## katrina46

she-la-ti-da said:


> Exactly.
> 
> I don't want to see people calling her names or one-starring her books, or any other retaliatory action. I want the authors who've been affected by this to contact the RWA, and let them put their organization behind the effort to have this trademark overturned. If this author has any sense, she won't let it get as far as a courtroom, but will back off and do the right thing. Anyone else thinking it would be a good idea to trademark common words or phrases should rethink that position.


I've checked out her facebook posts on the matter. It depends on what you consider sense. She seems to think we're overreacting.


----------



## C. Gockel

The trademark can be cancelled: https://www.upcounsel.com/trademark-cancellation

It is within the 5 year window and numerous authors' businesses can be hurt. (You don't have to prove that it has been hurt.) I think RWA is working on this.


----------



## ........

Litrpg is trademarked although it appears the author in question isn't enforcing it. Space Marine was trademarked but has now been abandoned after the massive backlash.

I wonder if Kong is going to start enforcing Litrpg one day?


----------



## ........

C. Gockel said:


> The trademark can be cancelled: https://www.upcounsel.com/trademark-cancellation
> 
> It is within the 5 year window and numerous authors' businesses can be hurt. (You don't have to prove that it has been hurt.) I think RWA is working on this.


Great article. It'll be interesting to see who "has standing" which is required when applying for cancellation. My reading of it means a narrow pool of authors who were already using "Cocky" for their series and not just single titles.


----------



## C. Gockel

........ said:


> Great article. It'll be interesting to see who "has standing" which is required when applying for cancellation. My reading of it means a narrow pool of authors who were already using "Cocky" for their series and not just single titles.


That depends. I don't know for sure what has happened, and there is a lot of hearsay. But if the author who started this is sending cease and desist to authors for merely having the word "Cocky" in their titles, the pool could be extremely wide--especially if she sent the letters to authors who had published titles previously to her TM. Also, authors who have the word Cocky in their titles but published before she got the TM could argue that they *COULD* be hurt because she is making her "Cocky" the official brand and their books therefore less legitimate. I don't think this will hold up in court and the TM will be cancelled.

I will be following the development very carefully, though.


----------



## David VanDyke

J.J. Fitch said:


> I've often heard that it's an uphill battle for all of us and that we aren't each other's competition. It would seem much wiser to help each other get to the top of the mountain.


there is some truth to the mountain metaphor, but we must think about this accurately.

At the bottom of the mountain there's room for everyone and it makes the most sense to cooperate.

In the middle there's still plenty of room and it makes sense to cooperate.

Near the top, there starts to get to be a little less room, but there's still room to cooperate and those who do, generally do better, reinforcing each other.

At the very top is the only place where there might be called true apples-to-apples competition, because there are only so many slots at the very top. But, it's the competition of a race, not a battle. As soon as one author strikes out at another, they will most likely knock themselves down the mountain--sometimes with others, sometimes only themselves.


----------



## 75814

........ said:


> Litrpg is trademarked although it appears the author in question isn't enforcing it. Space Marine was trademarked but has now been abandoned after the massive backlash.
> 
> I wonder if Kong is going to start enforcing Litrpg one day?


If he doesn't and there's widespread infringement, then he could be found to have abandoned the trademark. Quoted from BetaLaw:



> _Failure to Prosecute Results in Abandonment by Making the Mark Generic:_ This theory holds that when a trademark owner has failed to pursue infringers for so long that the mark experiences widespread use by competitors and customers to the extent that it has become the generic name of a product, then the failure to prosecute can result in abandonment. It is important to note that this theory does not necessarily penalize a mark owner for the failure to prosecute a single infringer; the failures to police and the scope of allowed infringing uses must be much more widespread. This approach has been followed by courts in Illinois, New York, and also the Trademark Trial and Appeals Board.


I hope he does lose the trademark. Trademarking LitRPG was a total dick move, much like Marvel and DC trademarking the word superhero.


----------



## Desert Rose

........ said:


> Litrpg is trademarked although it appears the author in question isn't enforcing it. Space Marine was trademarked but has now been abandoned after the massive backlash.
> 
> I wonder if Kong is going to start enforcing Litrpg one day?


LitRPG's trademark is in the supplemental register; IANAL but as far as I know, there's nothing enforceable about it, he has (I believe) five years to prove that LitRPG is sufficiently associated with him and only him as a brand, and re-apply for the principal register.

I have no idea how this woman managed to get a principal register trademark on a descriptive word like cocky. Someone down at the trademark office was not doing their job.


----------



## 97251

C. Gockel said:


> That depends. I don't know for sure what has happened, and there is a lot of hearsay. But if the author who started this is sending cease and desist to authors for merely having the word "Cocky" in their titles, the pool could be extremely wide--especially if she sent the letters to authors who had published titles previously to her TM.


Yes, she's sending letters to authors who simply have the word cocky in their titles, with books published before her TM. But they are not official C&D letters, but messages she wrote herself.

It's not hearsay that she doesn't want romance titles with the word "cocky" in it.. Other than the affected authors who posted on Twitter, the cocky author says on her FB:


> The word cocky can be used inside a book. It can no longer be on the title.


Some people are claiming that she has reported books to Amazon and the paperbacks were pulled. I haven't seen anyone mention any specific title, though, so I can't confirm how much of that is true.


----------



## ImaWriter

Jamila Jasper has her book back up with a new title and cover. And, ahem, an addition to the book's description. 

https://www.amazon.com/dp/B07B9MCHW7/


----------



## JWright

Cocky _____ (lol guess the word can't be used here) by Penelope Ward and Vi Keeland came out way before her series came out in June 2016.  Their book came out in August 2015 and was very popular.  Actually, it still is (current rank at 1,469 from here). I would say that book is probably cock of the walk, lol. 

Great new cover, ha ha.


----------



## 97251

Isn't BWWM a completely different subgenre?

It actually boggles my mind that the trademarking author thinks Jamila Jasper was copying her.


----------



## Desert Rose

Day Leitao said:


> Isn't BWWM a completely different subgenre?
> 
> It actually boggles my mind that the trademarking author thinks Jamila Jasper was copying her.


She seems to be under the impression that cocky is her word now. I saw a screenshot where she said you can still use cocky inside a book, but not in a title or series name.


----------



## ........

C. Gockel said:


> That depends. I don't know for sure what has happened, and there is a lot of hearsay. But if the author who started this is sending cease and desist to authors for merely having the word "Cocky" in their titles, the pool could be extremely wide--especially if she sent the letters to authors who had published titles previously to her TM. Also, authors who have the word Cocky in their titles but published before she got the TM could argue that they *COULD* be hurt because she is making her "Cocky" the official brand and their books therefore less legitimate. I don't think this will hold up in court and the TM will be cancelled.
> 
> I will be following the development very carefully, though.


Did some searching and found this article on "standing" https://www.ny-trademark-lawyer.com/the-standing-requirement-for-oppositions-and-cancellation-procee.html

"There must be a personal interest in the proceeding and a reasonable basis to believe the party in the position of plaintiff will be damaged"

This section is interesting - maybe what the RWA will be going under:

"If the ground asserted in a Board proceeding is either that the mark is merely descriptive or generic of the applicant's goods or services, then it is sufficient for Opposer to show that either it is a competitor of the Applicant or that the Opposer may use the term to describe his goods or services which are similar to those of the Applicant's. The Opposer is not required to have a proprietary right or an ownership interest in the mark to have standing in an Opposition under Section 2(a) false suggestion of a connection or under 2(d) likelihood of confusion, as long as the Opposer has a real interest in the outcome of the proceeding. This real interest may include attempting to prevent public deception or preventing harm to a particular trade association and its members."


----------



## ........

Another great article about cancelling a trademark: https://www.newyorktrademarkattorneyblog.com/2015/08/28/ttab-grants-petition-to-cancel-based-on-trademark-common-law-rights/

From reading this it appears any author who used "Cocky" in the past on a title or titles has standing to challenge. Then if they used it prior to the series in question they may prevail and have the cancellation granted...

I guess the search will be on for some authors with prior publication who want to be the face of the application.


----------



## unkownwriter

katrina46 said:


> I've checked out her facebook posts on the matter. It depends on what you consider sense. She seems to think we're overreacting.


Well, she's not reaching my definition of "sense", but that's me. 



ParkerAvrile said:


> Nobody should put themselves in the wrong by one-starring a competing author's books, but it's ridiculous to say victims should not take "any other retaliatory action." If I were the individual who received the letter I saw posted to Twitter, I would without emotion send a copy to the law firm named in the letter and a second copy to the state board of ethics in the state where that law firm operates. Extortion is a crime, and there are civil and sometimes even criminal remedies that can be taken against the extortionist. It could be the person who wrote the letter is herself a victim of legal malpractice. In which case, there are remedies that can be taken against the lawyer. But there needs to be some consequences for criminal behavior. Whether the criminal is the lawyer who took advantage or whether the criminal is an author who thinks she can put her competitors out of business, I have no idea. This should be for the appropriate authorities and/or a court to decide. All I know is she appears to be doing something criminal (threatening competitors in hopes they will stop competing), and it should not be allowed to continue. Again... I recognize she too could be a victim. A dishonest lawyer could have told her all kinds of things to get her $400/hour. I can't tell from here. But a crime is being committed and it won't be stopped unless highly motivated people take action.
> 
> Certainly contact the RWA but it IMHO it would be morally wrong to stop there. If I see a crime in progress, I have a duty to alert the authorities, not just a trade association. In this case, it is possible a lawyer is taking advantage of a client. It is equally possible another crime is occurring. Someone who is an expert in these matters needs to look at it.
> 
> Without going into details, I will say I was part of a community terrorized for several years by an extortionist. We are always told nothing will be done, it does no good to complain. Don't listen. The extortionist did go to jail. Don't give up before you even try.
> 
> _Edited. Drop me a PM if you have any questions. - Becca_


I didn't mean that people involved shouldn't take appropriate legal action. In fact, I said people should get in touch with RWA and see if they can help them get this resolved. Of course, if there's funds, they could also take their own action.

I'm sorry you were involved in a bad situation. It wasn't right, and I wish it had turned out better for you. I've been on the receiving end of bullying -- in a work place -- and had no legal recourse. So I know it hurts. I know the authors who have gotten these "cease and desist" letters are frightened and worried about their careers.

Something needs to be done to stop this woman, and she can laugh and insist she's in the right all she wants, but she's not.

_Both quotation and post have been edited. Drop me a PM if you have any questions. - Becca_


----------



## David VanDyke

Good lawyerly stuff from PG here:

http://www.thepassivevoice.com/trademark-cockup/


----------



## C. Gold

ImaWriter said:


> Jamila Jasper has her book back up with a new title and cover. And, ahem, an addition to the book's description.
> 
> https://www.amazon.com/dp/B07B9MCHW7/


Oh wow, her new cover is a huge improvement over the old one with a funnier title to boot. Way to go Jamila!


----------



## Becca Mills

Folks, no more name-calling and insults directed at Hopkins. If I just deleted or edited insulting language out of one of your posts, and you do it again, you'll be banned from the thread.

Also, this needs repeating, emphasis added:



Becca Mills said:


> An FYI for newer members: KBoards has a long-standing rule known as "WHOA," which stands for "what happens on Amazon [stays on Amazon]," developed for the Amazon forums but applying to all other sites as well. It's about not importing disagreements from other sites to KB. *This would include criticism of moderation decisions on other sites -- it's just not our business.* Along these lines, I've made some edits.


----------



## Forgettable

.


----------



## Usedtoposthere

Kevin Kneupper is awesome, and I've bought his book. That is all.


----------



## Kal241

LMareeApps said:


> An official challenge has been lodged by a retired IP Lawyer. He has shared the document he lodged via this Twitter post if anyone is interested in reading it.
> https://twitter.com/kneupperwriter/status/993359859071381505


I hope he succeeds. Trademarks can be a bit hard to remove, though this one should be easy enough.

I propose that, should this good man succeed, we all celebrate by having "The KBoards Cocky Party," where we throw copies of the issued C&D letters into the great sea that is our recycle bins in gleeful protest, chanting "No cessation without trademark-ation!"


----------



## C. Gold

Usedtoposthere said:


> Kevin Kneupper is awesome, and I've bought his book. That is all.


His covers are awesome. I tagged the first book in my TBR.


----------



## BellaJames

I find it weird that anyone writing romance would trademark such a common word. 

It's also weird that I was sitting watching Hopkins talking at that 20books conference talking about bullying and fighting for your beliefs, but this move is causing people to target her now. 

I don't understand this move, she's not the first author to use Cocky in one of her titles and she hasn't even sold the most books with that word in the title.


----------



## Forgettable

.


----------



## BellaJames

LMareeApps said:


> You know when you have a good idea, then you start thinking 'oh, if I did this it'll be even better,' then 'oh, I could do this too,'... and the idea snowballs into something barely resembling that initial good idea? I suspect that happened here. Only instead of stepping back once it was pointed out things had gone a step too far, she's decided to back herself and go all in.
> I do hope someone she trusts cares enough for her to give her a reality check soon. I think at this stage she's lost sight of what is really happening, and why people are reacting the way they are.


The damage has been done. She could have just sat in her corner writing her cocky series and adapting her books into movies etc. But now she's a target and that's not nice. It's equally not nice what she's doing to other authors.

Her books are getting 1 starred and I'm sure she's helping to sell other authors books with the word cocky in the title. Vi Keeland and Penelope Ward's book 'Cocky b*stard' has been out since 2015 and it's still at 1,798 on the charts. Is it moving up? It's certainly getting reviews mentioning Hopkins actions.

Update: Yep, Vi Keeland & Penelope Wards book 'Cocky b*stard' is moving up, it's at 1,752 right now.

This authors responses on social media are so unprofessional. Why ruin a decent career?


----------



## C. Gockel

Usedtoposthere said:


> Kevin Kneupper is awesome, and I've bought his book. That is all.


I bought the whole trilogy.


----------



## Rick Gualtieri

C. Gockel said:


> I bought the whole trilogy.


Hah! Now *thats* how you boost your career. Instant karma!


----------



## Elizabeth Barone

An IP lawyer wrote a blog post on the subject, which was shared by RWA: http://legalinspiration.com/?p=503

The gist: unless you're using the word in the stylized forms that were trademarked, you should be okay but consult a lawyer. Also, there have been no cease and desist letters actually sent.

RWA encourages members and non-members with information to email [email protected]


----------



## Mercedes Vox

Elizabeth Barone said:


> An IP lawyer wrote a blog post on the subject, which was shared by RWA: http://legalinspiration.com/?p=503
> 
> The gist: unless you're using the word in the stylized forms that were trademarked, you should be okay but consult a lawyer. Also, there have been no cease and desist letters actually sent.
> 
> RWA encourages members and non-members with information to email [email protected]


You'll note that the article you linked to was updated to reflect that TWO marks were trademarked: one with the stylized font, and one that's simply the word with no stylized font or design whatsoever.

Also, several authors have openly posted that they have indeed been sent C&Ds, albeit (and oddly) directly from the complainant and not from her IP attorney.


----------



## 97251

Ok, so I followed the case on social media, and I wanted to point out some things, because it appears that there is still some confusion:

1.	Emails or messages threatening authors were indeed sent directly by the trademarking author. Jamila Jasper has shared the one she received, and other people also claimed to have recived similar threats. At least one author has reported that Create Space pulled her paperback. True, there was no official C&D letters, but other actions were taken, including threatening to take all the money received from the book.

2.	The trademarking author thought that she was upping the self-publishing game, and that after her, other people would follow suit. She doesn’t seem to understand what kind of nightmare this would cause.

3.	The trademarking author is doing this not only to avoid confusion, but to avoid other people using cocky as a keyword and appearing on searches. To her credit (or not) she seems to believe that people who search for cocky ebooks are searching for her work, and that the popularity of the keyword is due to her books and her hardwork.  She believes (or believed, at least) that claiming ownership of that keyword was her right.

4.	The trademarking author also believes she’s the first one in publishing to have ever shot her own covers. She also believes she’s the first author to make an indie movie from her novel. (As much as this doesn’t have direct connection to the trademark, I think it sheds some light on the issue).
5.	Social media exploded and the topic was everywhere. I personally believe that everyone has the right to express their dissatisfaction with the author’s action. That’s what was mostly seen. There was some snark, though, and a few offenses. Some people also expressed their negative wishes for the author’s career. I never saw a single person threaten her physically. There are some rumors that the author has received death threats. If she received them privately, I don’t know, but none of that was done publicly. The alleged bullying the author received was mostly mockery and ridicule. I’m not saying I support that, I’m just relating what I saw. 

6.	As you read, an author who’s also a lawyer, Kevin Kneupper, has filed to contest her trademark. RWA was on the case as well and I don’t know what actions they’ll take.


----------



## C. Gockel

Elizabeth Barone said:


> An IP lawyer wrote a blog post on the subject, which was shared by RWA: http://legalinspiration.com/?p=503
> 
> The gist: unless you're using the word in the stylized forms that were trademarked, you should be okay but consult a lawyer. Also, there have been no cease and desist letters actually sent.


It sucks if one of your jobs as an indy is "consult a lawyer about a cover title." That could put producing a book up another $700.

Also, sending emails directly to other authors threatening legal action and financial repercussions, if that is indeed what happened, is not any better than a C&D order.


----------



## inconsequential

Not sure if others have posted and I've just not seen them, but this is the first actual email from Amazon to an author about pulling their book(s) because a 'third party' complained. And the third party is listed in the email as the trademark author:


__ https://twitter.com/i/web/status/993586528210309120


----------



## JWright

Yes, this is a big problem.  Amazon will take things down if there is a trademark.  It's not up to them to decide whether the trademark is valid or not, and I can see why Amazon would do it - not because there is anything good about the trademark but to cover themselves legally.


----------



## Becca Mills

JulesWright said:


> Yes, this is a big problem. Amazon will take things down if there is a trademark. It's not up to them to decide whether the trademark is valid or not, and I can see why Amazon would do it - not because there is anything good about the trademark but to cover themselves legally.


Yup. And this is why what might have seemed like a prohibitively costly legal agenda -- suing every author who uses "cocky" in a title -- actually isn't. I'm thinking no lawsuits will be needed unless she wants to stake a claim on these books' royalties.


----------



## Justa Nobody

Removed 9/19/2018 - non-agreement with VerticalScope TOS


----------



## JWright

Well, I'm not making assumptions - I am part of the Amazon Merch program and they do take down any t-shirts that are in violation of a trademark and people have lost their accounts. I am not sure that it would matter that it was a book instead of a t-shirt.

I do hope authors get the help they need to resolve the situation.



RPatton said:


> Someone already posted this (http://legalinspiration.com/?p=503) but Marc Whipple has volunteered to talk to Tara about how to go about a registry take down. He's been quietly informing and empowering authors from the sidelines since this started. He's also said he'd do a pro-bono consultation for anyone who is affected by this.
> 
> Instead of making assumptions, please please take him up on his offer. His explanation of the filings made me realize just how ignorant of the nuances I was.


----------



## APeter

JulesWright said:


> Yes, this is a big problem. Amazon will take things down if there is a trademark. It's not up to them to decide whether the trademark is valid or not, and I can see why Amazon would do it - not because there is anything good about the trademark but to cover themselves legally.


I'm just wondering: How difficult would it be for Amazon to look at the trademark date and compare it against books with the same phrase/word/etc., before going after authors? It seems to me they could easily create an algorithm to do this . . . and postpone taking any action until everything is resolved.


----------



## C. Gockel

inconsequential said:


> Not sure if others have posted and I've just not seen them, but this is the first actual email from Amazon to an author about pulling their book(s) because a 'third party' complained. And the third party is listed in the email as the trademark author:
> 
> 
> __ https://twitter.com/i/web/status/993586528210309120


It can cost up to $20K to defend yourself from false trademark infringement. This needs to be stopped.


----------



## JWright

Okay, yes, sorry if I misunderstood. I wasn't upset but just I do feel it is a problem that if someone has a trademark in place that Amazon is likely to follow it for legal reasons. Of course, I can't predict what Amazon will do.

I think the best line of defense is to challenge the trademark - which is being done. It just could make it difficult for things going forward. I wish it was more difficult to get a trademark granted.



RPatton said:


> I didn't mean to imply that you did. I'm sorry if I came across that way.
> 
> It was more that I was adding on to the conversation than contradicting your statement. Also, I wanted to remind people that there is an attorney who has offered consultations for anyone who is getting hit with the toxic waste of this mess.


----------



## inconsequential

What are these authors supposed to do if they can't afford an attorney? They're being locked into a situation from which they cannot escape! This is the kind of scenario that can lead to suicide. I'm not being dramatic here, I know this from experience.


----------



## Rick Gualtieri

APeter said:


> I'm just wondering: How difficult would it be for Amazon to look at the trademark date and compare it against books with the same phrase/word/etc., before going after authors? It seems to me they could easily create an algorithm to do this . . . and postpone taking any action until everything is resolved.


You're assuming it's easier than Amazon just hoisting it off on us with a form letter.


----------



## C. Gockel

inconsequential said:


> What are these authors supposed to do if they can't afford an attorney? They're being locked into a situation from which they cannot escape! This is the kind of scenario that can lead to suicide. I'm not being dramatic here, I know this from experience.


They need to contact the RWA. Also, I think all of us here would contribute to GoFundMe campaigns just for living expenses.


----------



## Rick Gualtieri

C. Gockel said:


> They need to contact the RWA. Also, I think all of us here would contribute to GoFundMe campaigns just for living expenses.


Or as a group legal fund if the RWA thing doesn't pan out. Either way, I think many of us would consider this more than a worthwhile cause to fight for.


----------



## Atlantisatheart

C. Gockel said:


> They need to contact the RWA. Also, I think all of us here would contribute to GoFundMe campaigns just for living expenses.


I'd kick in for that.

Looks like her author rankings are tanking, and her books are taking a hit. It's just a matter of how many authors she's going to take down with her.


----------



## Becca Mills

Rick Gualtieri said:


> You're assuming it's easier than Amazon just hoisting it off on us with a form letter.


Exactly. As I realized during my own copyright fiasco some years back, Amazon is under no requirement to sell any particular product. Amazon could decide they're not going to carry books with purple on the covers, or books containing the letter "m" -- their platform, their choice. So anytime there's a hint of legal threat, they're going to take the product down and will tend to resist restoring it because nothing says they have to. That's my understanding, anyway (IANAL, etc.).


----------



## JWright

Yes, exactly, and I'm not an attorney but I don't blame them if they take a product down if someone shows proof that they have a trademark. They do have to follow the law. The problem is people getting granted frivolous trademarks, but once they have it they probably can just report products to Amazon, and as you said earlier not have to take anyone to court or anything. There is a good chance Amazon will just remove the product.

Hopefully, this trademark will get thrown out!



Becca Mills said:


> Exactly. As I realized during my own copyright fiasco some years back, Amazon is under no requirement to sell any particular product. Amazon could decide they're not going to carry books with purple on the covers, or books containing the letter "m" -- their platform, their choice. So anytime there's a hint of legal threat, they're going to take the product down and will tend to resist restoring it because nothing says they have to. That's my understanding, anyway (IANAL, etc.).


----------



## 97251

Rick Gualtieri said:


> Or as a group legal fund if the RWA thing doesn't pan out. Either way, I think many of us would consider this more than a worthwhile cause to fight for.


Absolutely.


----------



## MichFisher

C. Gockel said:


> It can cost up to $20K to defend yourself from false trademark infringement. This needs to be stopped.


SO. MUCH. THIS.

This whole fiasco sets a dangerous precedent that, if not stamped out quickly and decisively, would embolden shady operators to eliminate competition by cutting them at the knees, putting their distributor accounts at risk, and costing excessive amounts of money to fight. Honest authors already have an uphill battle without having to deal with this sort of nonsense. It's not surprising that the creative community has come out in force to condemn such a ridiculously over-the-top rights grab.

Whether or not this person understood the gravity (and downright pettiness) of her actions at the onset, she's certainly done a bang-up job of killing any benefit of the doubt by her ongoing reactions. I hope she has at least one sensible person in her orbit to explain the facts of life so she'll at least stop digging herself in deeper.

I'd almost try to understand if the issue at hand was a trailblazing runaway best-seller with legit knock-offs, but glomming onto other people's successes while demanding an exclusive for genre tropes that've been widely used for decades is a very bad look. I hope this ill-advised move results in a spectacular and much-deserved crash and burn of this appalling strategy, once and for all.

Creatives should support each other. We have enough issues, as is.


----------



## Victoria Wright

MichFisher said:


> SO. MUCH. THIS.
> 
> This whole fiasco sets a dangerous precedent that, if not stamped out quickly and decisively, would embolden shady operators to eliminate competition by cutting them at the knees, putting their distributor accounts at risk, and costing excessive amounts of money to fight. Honest authors already have an uphill battle without having to deal with this sort of nonsense. It's not surprising that the creative community has come out in force to condemn such a ridiculously over-the-top rights grab.
> 
> Whether or not this person understood the gravity (and downright pettiness) of her actions at the onset, she's certainly done a bang-up job of killing any benefit of the doubt by her ongoing reactions. I hope she has at least one sensible person in her orbit to explain the facts of life so she'll at least stop digging herself in deeper.
> 
> I'd almost try to understand if the issue at hand was a trailblazing runaway best-seller with legit knock-offs, but glomming onto other people's successes while demanding an exclusive for genre tropes that've been widely used for decades is a very bad look. I hope this ill-advised move results in a spectacular and much-deserved crash and burn of this appalling strategy, once and for all.
> 
> Creatives should support each other. We have enough issues, as is.


+1 and Amen.


----------



## Atlantisatheart

I think we all need to keep an eye on the trademark site for anything related to ebooks and books now. How many chancers will now try to trademark words for a payday or to try to knock out the competition? It's a big can of worms that's been opened by this author and we all need to be careful.


----------



## AYClaudy

Atlantisatheart said:


> I'd kick in for that.
> 
> Looks like her author rankings are tanking, and her books are taking a hit. It's just a matter of how many authors she's going to take down with her.


I can't say I've kept a close eye on it, but her Author rank for kindle romance is 94. That's about where she was on Friday night when this kicked off.


----------



## ImaWriter

Atlantisatheart said:


> I think we all need to keep an eye on the trademark site for anything related to ebooks and books now. How many chancers will now try to trademark words for a payday or to try to knock out the competition? It's a big can of worms that's been opened by this author and we all need to be careful.


This is what I was thinking. How about a thread here that has the necessary link to the TM office? If a bunch of us are checking regularly and keeping the thread on page 1, between the group of us we can spot any shenanigans and beat them down before they get this far. What do the mods have to say about something like that?


----------



## 97251

Atlantisatheart said:


> I think we all need to keep an eye on the trademark site for anything related to ebooks and books now. How many chancers will now try to trademark words for a payday or to try to knock out the competition? It's a big can of worms that's been opened by this author and we all need to be careful.


Maybe not. Maybe the repercussion will dissuade people from copying her example. Or at least they'll try for less obvious words, which is still a problem.

People can't start taking ownership of words, for series or for whatever. English has less than 250k words, including obsolete and derivative words. 1 million ebboks are published per year. I mean... Are we really going to have isbns only?

Even if people only start claiming common words for book series, again there will eventually be a problem. Remember English has less than 250k words, and some genres have few descriptive words. Imagine what could happen in 5 or 10 years?

Trademark law needs to change in relation to books and ebooks, I guess, just because of the sheer number of works.


----------



## Tulonsae

Content removed due to TOS Change of 2018. I do not agree to the terms.


----------



## David VanDyke

Atlantisatheart said:


> I think we all need to keep an eye on the trademark site for anything related to ebooks and books now. How many chancers will now try to trademark words for a payday or to try to knock out the competition? It's a big can of worms that's been opened by this author and we all need to be careful.


One would think this is what organizations are for. Wouldn't be surprised if RWA has someone checking regularly from now on...


----------



## D.A. Boulter

RPatton said:


> Here's a link to the office. https://www.uspto.gov. I looked, but couldn't find a searchable database for applications. Maybe someone else will have better luck. I do know that they publish a weekly book, but no clue about how/where to find them.


Trademark Official Gazette

https://tmog.uspto.gov

Comes out every Tuesday, apparently.


----------



## 97251

D.A. Boulter said:


> Trademark Official Gazette
> 
> https://tmog.uspto.gov
> 
> Comes out every Tuesday, apparently.


Organizations should keep tabs on that. I don't know which, though.

Either way, by no means should anyone be able to trademark a single word in relation to publishing. A group of words, yes, but a single word, no.


----------



## Rick Gualtieri

Day Leitao said:


> Organizations should keep tabs on that. I don't know which, though.
> 
> Either way, by no means should anyone be able to trademark a single word in relation to publishing. A group of words, yes, but a single word, no.


I'd amend that to say common word.

I mean, if I have a made up word like The Smizzlesnuff Saga, I'm pretty sure It's not going to cause an uproar if I TM Smizzlesnuff


----------



## Used To Be BH

APeter said:


> I'm just wondering: How difficult would it be for Amazon to look at the trademark date and compare it against books with the same phrase/word/etc., before going after authors? It seems to me they could easily create an algorithm to do this . . . and postpone taking any action until everything is resolved.


Unfortunately, even if someone else used the same word or phrase earlier, if the trademark has been granted, it's not Amazon's job to investigate its validity.

What should happen is that the office in charge of granting trademarks should do a bit more investigating. It wouldn't be that hard to see if someone is already using the same word or phrase--particularly not if it's being used by a lot of people.


----------



## jb1111

Bill Hiatt said:


> Unfortunately, even if someone else used the same word or phrase earlier, if the trademark has been granted, it's not Amazon's job to investigate its validity.
> 
> What should happen is that the office in charge of granting trademarks should do a bit more investigating. It wouldn't be that hard to see if someone is already using the same word or phrase--particularly not if it's being used by a lot of people.


I think that technically, the people you hire to do your TM / servicemark / etc. paperwork for you are supposed to do extensive searches to make sure that your TM or servicemark or whatever would survive the process, or at least hold up in court.

I agree that the TM office should have done more investigating. Maybe they don't feel it is their responsibility.


----------



## Patty Jansen

> What should happen is that the office in charge of granting trademarks should do a bit more investigating. It wouldn't be that hard to see if someone is already using the same word or phrase--particularly not if it's being used by a lot of people.


Which shows the whole process is a joke. There is no quality control. Just pay a few thousand bucks for a trademark and it's yours. Then *you* deal with the fallout.

This whole thing is total BS and the trademark office is nothing but a blatant money grab with no consideration for either the person asking for the trademark or the people affected by it. Just pay the money. Kinda disgusting, really.

Hear that sound?

That's the lawyers laughing all the way to the bank.


----------



## 75814

APeter said:


> I'm just wondering: How difficult would it be for Amazon to look at the trademark date and compare it against books with the same phrase/word/etc., before going after authors? It seems to me they could easily create an algorithm to do this . . . and postpone taking any action until everything is resolved.


Unfortunately Amazon has a tendency to shoot first and ask questions later never.


----------



## inconsequential

I wanted to see if one could search for words attempting to be trademarked, but what if it's like website names? What if someone monitors the searches, hoping to pounce on whichever words are searched but not immediately snatched up (trademarked)?


----------



## J.J. Fitch

RPatton said:


> Here's a link to the office. https://www.uspto.gov. I looked, but couldn't find a searchable database for applications. Maybe someone else will have better luck. I do know that they publish a weekly book, but no clue about how/where to find them.


You have to go here - https://www.uspto.gov/trademarks-application-process/search-trademark-database

I used the basic search function. Entered in the keyword "e-books" and changed the field to "ALL." It's a horrible search tool, but I guess that's all they have. This search will give you about 8,000 results. I've browsed through about 1,000 of them. I believe they are all the pending and current trademarks.


----------



## Nathan Elliott

inconsequential said:


> I wanted to see if one could search for words attempting to be trademarked, but what if it's like website names? What if someone monitors the searches, hoping to pounce on whichever words are searched but not immediately snatched up (trademarked)?


The USPTO don't do that. They are part of the federal gov't. To pounce on a TM is not practical anyway. Unlike domains, a TM costs $$$ and you must actually show that you are using it for real, not just squatting on it.


----------



## ........

If you want to do your own searches, a fellow helpful author told me how.

Go here: https://www.uspto.gov/trademarks-application-process/search-trademark-database

Click on Trademark Electronic Search System.

Select "Basic Wordmark Search".

Select "Live" as the option (don't want to see dead trademarks)

Use search term e-books (including the hyphen otherwise you hardly get any results)

Change "Field" to "ALL".

Hit search.

I got 5872 results today so if you get that or near it, you've hit the right search.


----------



## Lefevre

How cocky. Better watch out University of South Carolina, she's coming for you.

https://en.m.wikipedia.org/wiki/Cocky_(mascot)

"Cocky" the costumed mascot is in big trouble.


----------



## katherinef

So, I used the Trademark Electronic Search System (e-book mentions) and found words like "covet," "scandalous," "crush," "stargazer," "lovestruck," "embrace," etc. Now, after everything that has been going on with "cocky," I'm confused. If we use a trademarked word in the series title, does that mean we could get sued or have our books taken down, even if the title consist of more than just that word? If that word is only in the book title, then it would be fine to use it, or not? I haven't used any of those words yet, just wondering, because it looks like every word in the dictionary could be trademarked soon.


----------



## LFGabel

This is an illuminating read, outlining the challenge to the "cocky" trademark, and drawn up by a fellow writer and former lawyer.


__ https://twitter.com/i/web/status/993359859071381505
Didn't see the link mentioned in this thread so far.


----------



## 41419

I think the trademarking author is in trouble. I was trying to establish when exactly she changed her series name, and the earliest reference to the Cocky series name that I could find was in late November 2017 - 2 months after the original TM filing. I found multiple reviews and other online sources referring to her first (non-Cocky) series name from August 2017 to November 2017 - including a blog post of her own which shows her covers with the non-Cocky series name.

Doesn't look good for her...


----------



## thesmallprint

Chiming in with my usual suggestion when things like this come up: we need a union/global Society of Authors. Easier said than done, I know, but I'd happily pay an annual subscription fee similar to that of http://www.societyofauthors.org/ to make sure matters like these can be dealt with on my behalf by a company with the appropriate resources.


----------



## 97251

Rick Gualtieri said:


> I'd amend that to say common word.
> 
> I mean, if I have a made up word like The Smizzlesnuff Saga, I'm pretty sure It's not going to cause an uproar if I TM Smizzlesnuff


That's not a word. Madeup words are fine, of course. I mean real words. Like really, there are only so many words in the dictionary. Words are part of writing. In a way, you could claim that for books, all words, especially adjectives, are descriptive.

It's not like Apple for computers. Nobody will ever need to describe a computer or computer programs using the word apple.

For books, it's different. Maybe my MC is cocky and I want to use it in the title. It would be a description of my product.

Not only adjectives, of course. Maybe I want to title my book Through Twilight. Well, guess what? I can. I could also title my book Misery, In Misery, or Misery Loves Company, for example. This shows that either there's something wrong with this cocky TM or there's something wrong with the way the author is interpreting/enforcing it. I'm willing to bet that there's an issue with both.

That said, again, it would be great if single, existing words weren't trademarkable in relation to books, because, for books, they are descriptive. A change like that could put all authors at ease for a long time.

Of course, I have no idea who can try to get trademark law changed. Big 5 maybe. I wonder how much they are paying attention to this issue, though. They definitely should.


----------



## katrina46

Day Leitao said:


> That's not a word. Madeup words are fine, of course. I mean real words. Like really, there are only so many words in the dictionary. Words are part of writing. In a way, you could claim that for books, all words, especially adjectives, are descriptive.
> 
> It's not like Apple for computers. Nobody will ever need to describe a computer or computer programs using the word apple.
> 
> For books, it's different. Maybe my MC is cocky and I want to use it in the title. It would be a description of my product.
> 
> Not only adjectives, of course. Maybe I want to title my book Through Twilight. Well, guess what? I can. I could also title my book Misery, In Misery, or Misery Loves Company, for example. This shows that either there's something wrong with this cocky TM or there's something wrong with the way the author is interpreting/enforcing it. I'm willing to bet that there's an issue with both.
> 
> That said, again, it would be great if single, existing words weren't trademarkable in relation to books, because, for books, they are descriptive. A change like that could put all authors at ease for a long time.
> 
> Of course, I have no idea who can try to get trademark law changed. Big 5 maybe. I wonder how much they are paying attention to this issue, though. They definitely should.


I imagine if the RWA are on it the big 5 is, too. This effects all publishing. None of them do this for that reason. I've read duplicate titles of traditionally published novels. If someone had trademarked the word pirate tons of novels would never have been published back in the 80s. I don't think this will hold up and I do believe she will be spending everything she makes on attorney fees for a long while. If she has a lawyer right now like she claims, he isn't a very good one. He'd be telling her to stop making damaging statements online. The first thing an attorney tells you is to shut up and let them do the talking.


----------



## Kwrite

A LA based entertainment law firm appears to be who she’s using for legal matters.


----------



## busywoman

I downloaded attorney/ writer Kevin Kneupper's lawsuit to cancel her trademark. She's got big trouble on the horizon. 

In it, he says she lied. That her registration should be cancelled because she "knowingly made false statements" and "with the intent to deceive" and to "constitute fraud on the USPTO." Paragraph 31.

He demonstrates how the word "cocky" was used on other books before the date of her first use. In fact, it was used in other romance series before hers! He also highlights how she changed the name of her series and book covers after she first published. So the date she claims in her trademark application was wrong. (You have to tell the trademark examiner the date you claim first use and show it predates other uses.)  In other words, she lied to the trademark office is what his lawsuit says.

The lawsuit also says she has a heavier burden to meet under the law to show that one word is trademarkable for a series title, and that word is a generic word. Paragraphs 8 and 9.

She's got some 'splainin' to do.


----------



## busywoman

I hope the authors she's brought her bogus claims against band together and sue her. You cannot lie to a government body and on the basis of fraud cause others economic harm, without consequences. 

They can probably sue her for their damage caused by fraudulent actions and attempted overreach. 

They also should include Amazon in order to get discovery of her original title names, as well as all other titles with the word cocky and the dates of the other titles. Not because Amazon has misbehaved. I don't think Amazon has a choice. But Amazon will have the best data for the courts about funny business with changing titles and covers, and other books and their dates.


----------



## dianapersaud

busywoman said:


> I hope the authors she's brought her bogus claims against band together and sue her. You cannot lie to a government body and on the basis of fraud cause others economic harm, without consequences.
> 
> They can probably sue her for their damage caused by fraudulent actions and attempted overreach.
> 
> They also should include Amazon in order to get discovery of her original title names, as well as all other titles with the word cocky and the dates of the other titles. Not because Amazon has misbehaved. I don't think Amazon has a choice. But Amazon will have the best data for the courts about funny business with changing titles and covers, and other books and their dates.


According to a Good Reads Librarian, there is a record that shows when titles are updated. I saw it on a twitter post.

Also, the fact that Amazon sent Tara Crescent the notification is proof that Ms. Hopkin's actions have negatively affected Ms. Crescent's business. ALL this PROOF and the ironic part is that if not for Ms. Hopkins contacting Amazon, there wouldn't be any (proof).


----------



## My Dog&#039;s Servant

katherinef said:


> So, I used the Trademark Electronic Search System (e-book mentions) and found words like "covet," "scandalous," "crush," "stargazer," "lovestruck," "embrace," etc. Now, after everything that has been going on with "cocky," I'm confused. If we use a trademarked word in the series title, does that mean we could get sued or have our books taken down, even if the title consist of more than just that word? If that word is only in the book title, then it would be fine to use it, or not? I haven't used any of those words yet, just wondering, because it looks like every word in the dictionary could be trademarked soon.


It's been about five centuries since my college marketing class, but one thing I remember was the professor talking about how essential it is not only to register a trademark, but to defend it. And defending it can get very, very expensive because the trademark owner has to identify non-authorized users, then follow legal processes to stop the use. (He'd been hit by a C&D letter when Kodak found a single instance in his 500+ page college textbook where a typo had left the K in Kodak in the lower case. This was way before a computer could have searched for it.)

One of the thing's that so disturbing to me is that this author is using Amazon to administer punitive action, and Amazon is happily galloping right along without any proof that the challenged authors are, in fact, infringing on her trademark. (That's aside from the question as to whether her trademark is defensible.)

Someone here has talked about Amazon taking the same action with T-shirt vendors. Do non-infringing authors/vendors have any recourse in this other than to battle their way through the morass that is Amazon service? Other than pitting their financial resources against Amazon's in a legal challenge, of course.


----------



## Fel Beasley

My Dog's Servant said:


> It's been about five centuries since my college marketing class, but one thing I remember was the professor talking about how essential it is not only to register a trademark, but to defend it. And defending it can get very, very expensive because the trademark owner has to identify non-authorized users, then follow legal processes to stop the use. (He'd been hit by a C&D letter when Kodak found a single instance in his 500+ page college textbook where a typo had left the K in Kodak in the lower case. This was way before a computer could have searched for it.)
> 
> One of the thing's that so disturbing to me is that this author is using Amazon to administer punitive action, and Amazon is happily galloping right along without any proof that the challenged authors are, in fact, infringing on her trademark. (That's aside from the question as to whether her trademark is defensible.)
> 
> Someone here has talked about Amazon taking the same action with T-shirt vendors. Do non-infringing authors/vendors have any recourse in this other than to battle their way through the morass that is Amazon service? Other than pitting their financial resources against Amazon's in a legal challenge, of course.


All the proof Amazon needs for infringement on the trademark is seeing if it's a registered trademark (which it is). They do similar with copyright and DMCA notices. They expect the authors to come to an agreement.

On twitter, Tara has said she can't access the two books taken down. She can't even change the title and put a new cover on them. They are completely blocked.

I'm urging everyone to go buy the other books of the authors who are receiving these takedowns, C&D letters, and/or forced to change their book titles. If you write in romance, and are comfortable with it, recommending it to your readers could be great, too.

Right now, there isn't much any of us can do to help. Putting our support behind the authors and helping them sell their books is the only active thing I can think to do that.


----------



## 101569

katherinef said:


> So, I used the Trademark Electronic Search System (e-book mentions) and found words like "covet," "scandalous," "crush," "stargazer," "lovestruck," "embrace," etc. Now, after everything that has been going on with "cocky," I'm confused. If we use a trademarked word in the series title, does that mean we could get sued or have our books taken down, even if the title consist of more than just that word? If that word is only in the book title, then it would be fine to use it, or not? I haven't used any of those words yet, just wondering, because it looks like every word in the dictionary could be trademarked soon.


That's a little scary. It sounds like other authors are trying to do the same thing. Fighting all of these could become cost prohibitive very quickly.


----------



## EMC21

katherinef said:


> So, I used the Trademark Electronic Search System (e-book mentions) and found words like "covet," "scandalous," "crush," "stargazer," "lovestruck," "embrace," etc. Now, after everything that has been going on with "cocky," I'm confused. If we use a trademarked word in the series title, does that mean we could get sued or have our books taken down, even if the title consist of more than just that word? If that word is only in the book title, then it would be fine to use it, or not? I haven't used any of those words yet, just wondering, because it looks like every word in the dictionary could be trademarked soon.


Most of those are the names of romance lines by Entangled Publishing. I haven't heard of Entangled going after anyone for having any of those words in their title, though. And they probably shouldn't, judging by what IP lawyers are saying regarding the current case. I imagine (though don't know) that it's probably only an issue if you start a line/series of romances under the name "Embrace" or whatever.


----------



## ImaWriter

katrina46 said:


> I imagine if the RWA are on it the big 5 is, too. This effects all publishing. None of them do this for that reason. I've read duplicate titles of traditionally published novels. If someone had trademarked the word pirate tons of novels would never have been published back in the 80s. I don't think this will hold up and I do believe she will be spending everything she makes on attorney fees for a long while. If she has a lawyer right now like she claims, he isn't a very good one. He'd be telling her to stop making damaging statements online. The first thing an attorney tells you is to shut up and let them do the talking.


I've read, I think in a Tweet, that Penguin Random House now has their legal team involved. I have not substantiated this, just passing on what I've read. So yeah, it's not hard to believe that any of the Big 5 that have a romance imprint are going to be all over this as well.


----------



## C. Gold

HopelessFanatic said:


> All the proof Amazon needs for infringement on the trademark is seeing if it's a registered trademark (which it is). They do similar with copyright and DMCA notices. They expect the authors to come to an agreement.
> 
> On twitter, Tara has said she can't access the two books taken down. She can't even change the title and put a new cover on them. They are completely blocked.
> 
> I'm urging everyone to go buy the other books of the authors who are receiving these takedowns, C&D letters, and/or forced to change their book titles. If you write in romance, and are comfortable with it, recommending it to your readers could be great, too.
> 
> Right now, there isn't much any of us can do to help. Putting our support behind the authors and helping them sell their books is the only active thing I can think to do that.


I've read one of Tara's books a while back and already planned to read her entire KU backlog... once I free up a spot! I think it's a positive way to show support.


----------



## My Dog&#039;s Servant

Bill Hiatt said:


> Unfortunately, even if someone else used the same word or phrase earlier, if the trademark has been granted, it's not Amazon's job to investigate its validity.


But do they have an obligation to confirm that the challenged product (book, T-shirt, whatever) actually infringes the trademark? At least before taking punitive action.

Clearly, they act as if they don't, but is that just because it's more convenient and vendors have no real recourse that wouldn't cost them a fortune to pursue?


----------



## Charmaine

I'm almost sympathetic to her because I can imagine wanting to stop someone from making a carbon copy of your book. However, it seems as if instead of carefully approaching what she thought were offending books, she went about it like a wrecking ball taking anything in her path. 

Now I don't really know much about the trademarks, but I can absolutely say that she's handling this situation in the worst way possible. Taunting and infuriating people is the worst thing she could do for herself. She's even turning off her fans with her attitude. It's like watching a car wreck in slow motion or at the very least a good case study in what not to do.


----------



## Ros_Jackson

The trademark cancellation process could take at least 10 weeks to 4 months if I understand this correctly (fourth paragraph from the bottom). https://www.uspto.gov/trademarks-application-process/appealing-trademark-decisions/trademark-trial-and-appeal-board-ttab This isn't going to get resolved quickly. In the meantime, the potential damages to the affected authors are likely to rack up.


----------



## C. Gockel

This issue is much bigger than than the writing community.

I think what we need is a comedian like John Oliver to take it up. Would Stephen Colbert do it? Trevor Noah? It needs to be something that reaches the broader public. I thought that late night news-medians would be best because it has a funny name and it's a serious issue. This isn't the first time this has happened, and it won't be the last. I posted something on my personal Facebook page and tagged Oliver ... seeing as I'm one unknown person I doubt he'll notice.

Also, those who are affected--and the RWA--might want to consider working with the Institute for Justice. This seems right up their alley, and even just knowing about this case might make them more aware of cases like it in the future and be prepared to take them up.


----------



## readingril

I'm following this thread as a romance reader, not a writer. This story saddens me because romance gets a bad rap as it is. The romance genre doesn't need this to make it worse.

I saw a comment from the very wise Rosalind James on one of Faleena's Facebook posts from yesterday. I wish she'd consider her very thoughtful and well written advice.

_Edited. Drop me a PM if you have any questions. - Becca_


----------



## inconsequential

It's now being reported that books with the TMed word in the keywords are being suppressed. Might want to check your keywords and adjust.

https://www.facebook.com/tkleigh/posts/2053855568159881

_replaced original link with direct link to post by author making the report, thanks. --Betsy_


----------



## inconsequential

The cover designer for the TM author's covers has weighed in:


__ https://twitter.com/i/web/status/993877996594282496


----------



## Anarchist

This was inevitable...










But TrainWreckSecrets.com is still available.


----------



## inconsequential

From RWA:


__ https://twitter.com/i/web/status/993883786931777536


----------



## Becca Mills

My Dog's Servant said:


> But do they have an obligation to confirm that the challenged product (book, T-shirt, whatever) actually infringes the trademark? At least before taking punitive action.
> 
> Clearly, they act as if they don't, but is that just because it's more convenient and vendors have no real recourse that wouldn't cost them a fortune to pursue?


They have no such obligation, so far as I know. It's their store. They can sell/not sell whatever they want, and anything with a whiff of legal jeopardy attached is firmly in the "not" group. A sensible position, but it sure does suck to get caught on the wrong side of it.

Sent from my SM-G930V using Tapatalk


----------



## Anarchist

I noticed people are now 1-starring her books.

I don't agree with the author's tactics, but that is some passive-aggressive cowardly BS.


----------



## J.J. Fitch

northstar said:


> Apparently she [spoke for] two hours on Facebook live today.
> 
> https://www.youtube.com/watch?v=96CjvfJTTHM&
> 
> _Edited. Drop me a PM if you have any questions. - Becca_


I was really hoping she'd come to her senses and it would be an apology, but she's just digging in her heels. Couldn't get through more than a few minutes of it. Very sad.



inconsequential said:


> From RWA:
> 
> 
> __ https://twitter.com/i/web/status/993883786931777536%5B%2Furl[/SIZE][/i]


----------



## Elizabeth S.

J.J. Fitch said:


> Some people have also gone after her cover models. Not cool. This needs to be handled professionally.


Is this something confirmed by one or more of the models or just something she has claimed?

If she's breaking the font creator's copyright, can he issue a DMCA notice and have Amazon take down her books?


----------



## Amanda M. Lee

Anarchist said:


> I noticed people are now 1-starring her books.
> 
> I don't agree with the author's tactics, but that is some passive-aggressive cowardly BS.


It definitely is. Of course, she's gone after all the other authors and one-starred their books while threatening them for using certain names, so it seems to be a tit-for-tat thing. One-starring is always ridiculous.


----------



## Atlantisatheart

northstar said:


> Apparently she [spoke for] two hours on Facebook live today.
> 
> https://www.youtube.com/watch?v=96CjvfJTTHM&
> 
> _Edited. Drop me a PM if you have any questions. - Becca_


I watched some of this and ... cringe ... but, I suppose she had to do something to try and turn it around.

If I were a fan who came across this video I'd be like...   

_Edited. Drop me a PM if you have any questions. - Becca_


----------



## Rick Gualtieri

Amanda M. Lee said:


> One-starring is always ridiculous.


It truly is the author equivalent of a 3 year stamping their feet. There are so many better ways to do things.

But you're also correct in that her hands aren't exactly clean in this matter either.


----------



## Elizabeth S.

Acheknia said:


> She's being slated for not being honest, rightfully so, if (because) she's lied, but calling this a 2 hour rant is also dishonest.


Probably not dishonesty--just a lack of people who've managed to make it all the way through to figure that out.


----------



## Atlantisatheart

Atlantisatheart said:


> I watched some of this and ... cringe ... but, I suppose she had to do something to try and turn it around.
> 
> If I were a fan who came across this video I'd be like...
> 
> _Edited. Drop me a PM if you have any questions. - Becca_


Ok, lol, now that doesn't make any sense, Becca, so I'm going to add. I don't think this did turn it around. I think it made it worse.


----------



## Jena H

Acheknia said:


> Not a fan & never heard of her before this, I don't read or write romance but I'm totally against this whole saga & hope the TM is taken down, soon, for the sake of all authors who will want to use English words now & in the future.
> 
> but...
> 
> Just to put the record straight, I watched all of this & it's not a 2 hour rant.
> 
> She's being slated for not being honest, rightfully so, if (because) she's lied, but calling this a 2 hour rant is also dishonest.
> 
> _I've made some edits so that the video is introduced more neutrally. Drop me a PM if you have any questions. - Becca_


You're right, it's NOT a "two-hour rant." It's one hour, forty-two minutes.  And no, it's not totally a rant. More of a ramble. A loooong, and (to some, like me) pointless ramble. Covers a lot of stuff--apparently she chose the cover images online first, using them as inspiration for the books--but in the end it circles back around toward justification.

On another note, she brought Sam and Dean Winchester into the mix, as she's apparently a fan of the show.


----------



## Becca Mills

Acheknia said:


> The 1st person to call it a 2 hour rant was dishonest, I get that other people just share it believing that, without checking to see if it's true.


Rantiness is subjective -- one person's rant is another person's thoughtful meditation is another person's ramble -- so let's not call one another "dishonest." But I have made some edits to the thread to present the video more neutrally; a couple posts with a high schadenfreude quotient have also been removed.


----------



## JWright

She says she got inspiration for her Cocker Brothers name (in the video at least 3 times) from Joe Cocker (the singer) and talks about lots of other influences too but no one can use the word "cocky" because she is building a brand.


----------



## Michelle Hughes

If I were one of the authors that had their work taken down because of this person, I'd put together a class action lawsuit (if that's possible) with other authors and sue her tail into next year keeping her so tied up in legal battles that she didn't have time to do something [like] this again.

_Edited. Drop me a PM if you have any questions. - Becca_


----------



## 91831

Hmmm, I'm not certain, but I think she's taken her FB page down. I can't seem to see it now - I was watching the video and POOF disappeared.


----------



## J.J. Fitch

evdarcy said:


> Hmmm, I'm not certain, but I think she's taken her FB page down. I can't seem to see it now - I was watching the video and POOF disappeared.


I don't see it anymore, either. Hopefully her lawyers have finally intervened at this point.


----------



## Desert Rose

J.J. Fitch said:


> I don't see it anymore, either. Hopefully her lawyers have finally intervened at this point.


We can only hope. I mean, there's shooting yourself in the foot, and then there's emptying the clip, reloading, and starting on the other foot.

Of course, by this point I'm sure there are screenshots galore, and someone has already uploaded her video to YouTube. Even Cracked.com has written about it. It's a little late to try and duck the consequences of her 15 minutes of internet fame.


----------



## Lexi Revellian

Dragovian said:


> We can only hope. I mean, there's shooting yourself in the foot, and then there's emptying the clip, reloading, and starting on the other foot.
> 
> Of course, by this point I'm sure there are screenshots galore, and someone has already uploaded her video to YouTube. Even Cracked.com has written about it. It's a little late to try and duck the consequences of her 15 minutes of internet fame.


True - it's out there: https://www.youtube.com/watch?v=96CjvfJTTHM&


----------



## LFGabel

It's interesting to note that if you Google the author in question, several original covers are shown. The font treatment for "cocky" does not resemble the trademark she registered.


----------



## Becca Mills

Folks, let's try to keep the focus on the trademarks, their affect on authors, and possible paths forward. I'm having to remove or edit too many posts that focus on Hopkins personally. The Facebook Live video may be generating some of that more personal focus, but to keep the discussion going here, we need to resist the pull toward the personal and keep our focus on the legal issues and their larger implications. Thanks.


----------



## Rose Andrews

Becca Mills said:


> Folks, let's try to keep the focus on the trademarks, their affect on authors, and possible paths forward. I'm having to remove or edit too many posts that focus on Hopkins personally. The Facebook Live video may be generating some of that more personal focus, but to keep the discussion going here, we need to resist the pull toward the personal and keep our focus on the legal issues and their larger implications. Thanks.


Mine was one of those. I apologize.  It's troublesome that a simple word could cause so much chaos though. Trademarking something so common is actually terrifying. It'll be interesting seeing what transpires from all of this.


----------



## Betsy the Quilter

Stepping in to reiterate what Becca said.

And, to ease the moderator load, posts that focus on Hopkins personally will be removed in their entirety, not edited.  So, be thoughtful and read your post carefully before hitting "Post."

We don't want to have to lock the thread, even temporarily, but I will if I need to to allow the mods, particularly Becca, who has been working very hard to keep this thread open, to have some free time.  Let's take the high road here, folks.

Betsy
KB Admin


----------



## ImaWriter

Dragovian said:


> We can only hope. I mean, there's shooting yourself in the foot, and then there's emptying the clip, reloading, and starting on the other foot.
> 
> Of course, by this point I'm sure there are screenshots galore, and someone has already uploaded her video to YouTube. Even Cracked.com has written about it. It's a little late to try and duck the consequences of her 15 minutes of internet fame.












Saw that Tweet the other day. Truer words...!


----------



## GeneDoucette

ImaWriter said:


> Saw that Tweet the other day. Truer words...!


HAHAHAHAHAHA


----------



## My Dog&#039;s Servant

Becca Mills said:


> They have no such obligation, so far as I know. It's their store. They can sell/not sell whatever they want, and anything with a whiff of legal jeopardy attached is firmly in the "not" group. A sensible position, but it sure does suck to get caught on the wrong side of it.


I know you've been in the front lines of something similar, Becca, and it's clear Amazon doesn't hesitate to act first, then ask no questions later. And I know the TOS are in their favor on this sort of thing. But in pretty much any other job I've ever had, you wanted to NOT jump in with boots on until you really knew what was going on. Yet Amazon doesn't even blink before they're tromping around in steel toed boots. Kill 'em all and let someone else sort out the innocent, I guess.


----------



## SueSeabury

This whole thing has me dumbfounded. I don't know if I wish I had a Cocky book or if I'm glad I don't.

_Edited. Drop me a PM if you have any questions. - Becca_


----------



## My Dog&#039;s Servant

Anarchist said:


> I noticed people are now 1-starring her books.
> 
> I don't agree with the author's tactics, but that is some passive-aggressive cowardly BS.


Absolutely agree.


----------



## Becca Mills

My Dog's Servant said:


> I know you've been in the front lines of something similar, Becca, and it's clear Amazon doesn't hesitate to act first, then ask no questions later. And I know the TOS are in their favor on this sort of thing. But in pretty much any other job I've ever had, you wanted to NOT jump in with boots on until you really knew what was going on. Yet Amazon doesn't even blink before they're tromping around in steel toed boots. Kill 'em all and let someone else sort out the innocent, I guess.


IANAL, but I suspect Amazon feels it has a legal obligation to react to the trademark. I know it has a legal responsibility to react immediately to notifications of copyright violation. I'm interested to see what Amazon does in response to RWA's request to hold off on taking down more "cocky" books. I guess RWA wouldn't have made the request if it didn't seem possible.


----------



## Taking my troll a$$ outta here

Thrilled to see that 2 of Tara Crescent’s books are restored on Amazon. She posted on her fb page 👍👍
Glad to see Amazon listened to the RWA. This is a big deal for both the issue at hand and for the issue of having no recourse when Amazon takes action.


----------



## locker17

I also design t-shirts and products and in my opinion the trademark laws are messed up. If you create a totally original creature and give it an original name like the Zurd, and give him a catchphrase like Zurd sayz whut!, Yeah okay, trademark that. No one else can make shirts with the Zurd saying Zurd sayz whut! I have no problem with that. What I do have a problem is taking something totally unoriginal that everyone already says and deciding you are going to own it. There are so many trademarks for every common phrase. Like Get Lucky. I seriously doubt whoever trademarked that is the same person that came up with that phrase. Same with country girl, the word caution, and a lot of other words that are trademarked. I don't get why that's allowed. It should be based on something original that you came up with.


----------



## Ros_Jackson

It's in The Guardian https://www.theguardian.com/books/2018/may/08/romantic-novelist-trademarking-of-word-cocky-fameela-hopkins which may be another step towards this issue getting publicity beyond our circles.

There are good reasons why it should. Not only does the grant of this trademark have implications for all authors of cocky/arrogant protagonists, it shows how lax the system of granting trademarks can be. I'm astounded that one could be granted without even a cursory attempt to look for prior works - a simple search would have turned up several. The wider implication for anyone who wants to get a trademark is that you need to do your own due diligence first if you're applying in the US. It makes me wonder what people who get trademarks are paying for.


----------



## jb1111

I can understand someone wanting to protect their brand.

But the way it was done seems to be counterproductive. 

I can't help but think there had to have been a better way to protect the brand, though. Perhaps TMing a longer phrase, or a specific logo -- rather than just one word that has probably been in every dictionary since Webster's came out in 1806 -- a word which apparently had already been in use by other authors. 

Oh well.


----------



## My Dog&#039;s Servant

Becca Mills said:


> IANAL, but I suspect Amazon feels it has a legal obligation to react to the trademark. I know it has a legal responsibility to react immediately to notifications of copyright violation. I'm interested to see what Amazon does in response to RWA's request to hold off on taking down more "cocky" books. I guess RWA wouldn't have made the request if it didn't seem possible.


You're right about the DMCA, but my (ignorant, uninformed, totally lacking in any legal training) understanding re trademark is that actions are based on actual infringement of the trademark AS REGISTERED. They can't support or condone obvious abuse of a registered trademark, but what compels them to remove books, especially single titles, using the word "cocky" in the keywords when the trademark is for a "series of books" in the romance field or the word combined with a specific font? This is where, it seems to me, Amazon is being precipitate because they prefer to err on the side of caution on their own behalf, and d*mn the harm caused authors who have not infringed the trademark but are being challenged, anyway. It's what Amazon does, but....do they have a legal requirement to do it? Doesn't seem so to me. (please refer to previous comment about ignorant, uninformed, and totally lacking in any legal training  )

ETA that it looks like they have at least taken a deep breath to think this through if they've reinstated two of an affected author's works. Or maybe they're just realizing that the trademark is being challenged so perhaps better to move a little more cautiously.


----------



## Becca Mills

EB said:


> Thrilled to see that 2 of Tara Crescent's books are restored on Amazon. She posted on her fb page &#128077;&#128077;
> Glad to see Amazon listened to the RWA. This is a big deal for both the issue at hand and for the issue of having no recourse when Amazon takes action.


Well now. That seems like a pretty significant move on Amazon's part. Interesting.



My Dog's Servant said:


> You're right about the DMCA, but my (ignorant, uninformed, totally lacking in any legal training) understanding re trademark is that actions are based on actual infringement of the trademark AS REGISTERED. They can't support or condone obvious abuse of a registered trademark, but what compels them to remove books, especially single titles, using the word "cocky" in the keywords when the trademark is for a "series of books" in the romance field or the word combined with a specific font? This is where, it seems to me, Amazon is being precipitate because they prefer to err on the side of caution on their own behalf, and d*mn the harm caused authors who have not infringed the trademark but are being challenged, anyway. It's what Amazon does, but....do they have a legal requirement to do it? Doesn't seem so to me. (please refer to previous comment about ignorant, uninformed, and totally lacking in any legal training  )
> 
> ETA that it looks like they have at least taken a deep breath to think this through if they've reinstated two of an affected author's works. Or maybe they're just realizing that the trademark is being challenged so perhaps better to more a little more cautiously.


Maybe the series title vs. individual book title is the place Amazon is hanging its legal hat? Dunno. Oh to be a fly on the wall of KDP's legal division right now.


----------



## ImaWriter

Becca Mills said:


> Well now. That seems like a pretty significant move on Amazon's part. Interesting.
> 
> Maybe the series title vs. individual book title is the place Amazon is hanging its legal hat? Dunno. Oh to be a fly on the wall of KDP's legal division right now.


I just checked Tara's page, and the *Cocky Series* is there. https://www.amazon.com/gp/product/B077GYJYKQ/ref=series_rw_dp_sw

They are rank stripped, which is utterly sickening, but they are there.


----------



## Jena H

Ros_Jackson said:


> It's in The Guardian https://www.theguardian.com/books/2018/may/08/romantic-novelist-trademarking-of-word-cocky-fameela-hopkins which may be another step towards this issue getting publicity beyond our circles.
> 
> There are good reasons why it should. Not only does the grant of this trademark have implications for all authors of cocky/arrogant protagonists, it shows how lax the system of granting trademarks can be. I'm astounded that one could be granted without even a cursory attempt to look for prior works - a simple search would have turned up several. The wider implication for anyone who wants to get a trademark is that you need to do your own due diligence first if you're applying in the US. It makes me wonder what people who get trademarks are paying for.


An actual quote from the video: the trademark "only affects authors who had ONE BOOK of a huge backlog, only so that I could protect my brand--just from a sheer business standpoint." (the emphasis on one book is hers)

This comment doesn't refer to other _series_ with the word "cocky" in it, but individual books. So even if she's trademarking the word to "protect her series," she's trying to stop anyone from using the title on a single book. (I realize I'm stating what we already know, but regardless of anything else that's been written about her intention, the above quote is literally from her own lips.)

On another note, maybe a descendant of Dostoyevsky, or the guy who created Mario and Luigi, or even Stephen Ambrose, should trademark the word "brothers." That might spike this woman's guns in the name of her series.

_Edited. PM me if you have any questions. --Betsy/KB Mod_


----------



## JWright

Agreed. In the video she talked about not going after "one-offs" (her word) but then says she is going after single books later.

Also, she retroactively changed the name of her series and Tara Crescent has Cocky Series which was published in August 2017 - while Hopkins was called Cocker Brothers something.



Jena H said:


> An actual quote from the video: the trademark "only affects authors who had ONE BOOK of a huge backlog, only so that I could protect my brand--just from a sheer business standpoint." (the emphasis on one book is hers)
> 
> This comment doesn't refer to other _series_ with the word "cocky" in it, but individual books. So even if she's trademarking the word to "protect her series," she's trying to stop anyone from using the title on a single book. (I realize I'm stating what we already know, but regardless of anything else that's been written about her intention, the above quote is literally from her own lips.)
> 
> On another note, maybe a descendant of Dostoyevsky, or the guy who created Mario and Luigi, or even Stephen Ambrose, should trademark the word "brothers." That might spike this woman's guns in the name of her series.


_Edited quoted post. PM me if you have any questions. --Betsy/KB Mod_


----------



## MarilynVix

So, I just noticed this came up as a thing on Twitter and started to look into it, and was, like WTF?

So, basically an author has registered the word "Cocky" because it relates to a family of characters she's created and the name of her book series. She registered it with a trademark in a certain font, and now is going around threatening to sue all the authors that have the word "Cocky" appear in their title and telling them to change their titles. She sends a letter to the authors saying she can sue and take the money they've earned from their book.

So, it looks like it is a romance author doing this mostly to other romance authors, but if anyone has used the word "Cocky", she might be going after them. Looks like she's searching through places like Amazon and looking at the titles and sending letters to those authors.

I wasn't sure if anyone on the board has had this happen to them, but it's just happened in the last few days, and is all over Twitter. So, I thought I'd give everyone a heads up.

The implications are clear. If authors start trademarking words and suing other authors for their use, it could be VERY messy. 
Imagine an author trademarking "aliens" or "starship" and suing sci-fi authors. Just saying.

But here are tags to look on Twitter: #cockygate #cocky

Here's an article about this from yesterday: http://legalinspiration.com/?p=503

I've also noticed RWA has tweeted that they are aware and asking for other authors to report to them that are affected. 
Tweet from RWA: https://twitter.com/romancewriters/status/993883786931777536


----------



## Betsy the Quilter

Marilyn,

I've merged your thread with the existing thread on this topic.  Sorry for any confusion!

Betsy


----------



## My Dog&#039;s Servant

ImaWriter said:


> I just checked Tara's page, and the *Cocky Series* is there. https://www.amazon.com/gp/product/B077GYJYKQ/ref=series_rw_dp_sw
> 
> They are rank stripped, which is utterly sickening, but they are there.


As of 7:30 p.m. ET, the ranks are back up. And nice ranks they are, too. Good luck to her.


----------



## J.J. Fitch

JulesWright said:


> Also, she retroactively changed the name of her series and Tara Crescent has Cocky Series which was published in August 2017 - while Hopkins was called Cocker Brothers something.


This could very well be one of the keys to the trademark's undoing. From what I understand, she didn't change it to the Cocky Series until 3 months after the trademark application was submitted.


----------



## J.J. Fitch

My Dog's Servant said:


> As of 7:30 p.m. ET, the ranks are back up. And nice ranks they are, too. Good luck to her.


Yes, it's lovely to see the indie community really rally to support those getting hit.


----------



## Athena Grayson

Apparently, Amazon seems to be mutating the initial infection. A reviewer's reported that all of her *reviews* using the word "cocky" as a descriptor have been taken down. Another author reported that her createspace book was pulled because she used the word in her description.

https://www.facebook.com/photo.php?fbid=2038375486485144&set=a.1391995031123196.1073741827.100009381373317&type=3&theater


----------



## cagnes

There's an interesting podcast interview with author Kevin Kneupper on Horrible Writing.

http://horriblewriting.libsyn.com/38-cocky-with-author-kevin-kneupper?tdest_id=539619


----------



## 97251

I watched a bit of the video, and she explains that she wants to keep the word cocky as a keyword for advertising, such as Facebook.

She's also mentioned before in one of her written justifications, that she believes other authors insert the word cocky just to show up when people are searching for her books. So basically she wants to monopolize a keyword. In romance, I believe it's a keyword for a type of character.

So her actions are motivated by an extremely aggressive marketing tactic based on visibility and algorithms. It's not about protecting her brand, but about thwarting competition.

_Edited pursuant to our image policy. Drop me a PM if you have any questions. - Becca_


----------



## Becca Mills

At this point, most posts reacting to the Fb Live video aren't making the cut. If you can pull some concrete, substantive information out of it, okay, but ridiculing and/or snarky reactions push the conversation in the wrong direction. High road please, as Betsy said.


----------



## RedFoxUF

I couldn't make it through the whole video but she does appear to admit that she isn't planning to enforce the TM across the board, at least that's how I interpreted her words. She specifically says it's not all uses, just some (as determined by her own criteria). I wonder how that interfaces with the enforcement requirement to maintain a TM?

Can you license your TMs? Because now I want to TM a bunch of stuff and license use.


----------



## Scarlett_R

Yeah I read an article on this recently. Will be interested to see how it turns out, I don't think it's going to work well for her.


----------



## Pandorra

wish her luck .. lol .. bet I can win a suit on harassment easier!


----------



## Forgettable

.


----------



## 101569

Pandorra said:


> wish her luck .. lol .. bet I can win a suit on harassment easier!


Slander would be easy too. Specific authors were called plagiarists. I cant think of a worse form of slander for an author. Especially doing it in a public forum.


----------



## Rick Gualtieri

RedFoxUF said:


> Can you license your TMs? Because now I want to TM a bunch of stuff and license use.


It all depends on how you're doing things. If your plan is to create an original series, work to make it super popular, trademark it, and then make licensing deals ... cool. Good luck!

If your plan is to try and gobble up random common words for the goal of strong arming people, first you actually have to be granted the trademark. But even then, I think most would be far more interested in paying to see them invalidated than offering up $$ for licensing.


----------



## Becca Mills

A couple baby threads have been merged in. Sorry for any confusion.


----------



## Forgettable

.


----------



## David VanDyke

Athena Grayson said:


> Apparently, Amazon seems to be mutating the initial infection. A reviewer's reported that all of her *reviews* using the word "cocky" as a descriptor have been taken down. Another author reported that her createspace book was pulled because she used the word in her description.


I put the word into some of my book descriptions. I hope more authors do. Make it a completely untenable situation to police.


----------



## Tulonsae

Content removed due to TOS Change of 2018. I do not agree to the terms.


----------



## Becca Mills

The pace of news and reaction seems to have slowed for the moment, but to be on the safe side, I'm going to lock this until the North American morning, when one of us will be back online to mind the shop.

_Unlocked. Play nice, people!--Betsy_


----------



## RedFoxUF

Tulonsae said:


> When I looked up the trademark on the USPTO site, the registration said it was specifically for ebooks that are downloaded. So, Amazon pulling down printed books would be way beyond the trademark that was granted.
> 
> I can understand Amazon wanting to abide by the trademark. I do not understand them going beyond the trademark. (Well, I can guess.)


They have liability for their over reach as well. I hope that doesn't get lost because they are just as bad as the TM office.


----------



## unkownwriter

I've been seeing that Amazon is pulling down print books as well, which is not covered under the trademark, as I understand it. It's also not covered for use in reviews or keywords, either. So, Amazon is overreaching their authority or obligation, and they need to stop.

Also, they need to allow authors who chose to do so to have access to their books so they can change things if they want to (or are too scared not to), though I recommend no one touches a damned thing as this trademark is going to fall.

Perhaps I'm being a bit cocky, but as an American who believes in our First Amendment, I'm standing by my words.


----------



## Nathan Elliott

Her Cocky TM does include printed books (IC 016) as well.  From TESS:

IC 009. US 021 023 026 036 038. G & S: A series of downloadable e-books in the field of romance. FIRST USE: 20170605. FIRST USE IN COMMERCE: 20170605

IC 016. US 002 005 022 023 029 037 038 050. G & S: A series of books in the field of romance. FIRST USE: 20170904. FIRST USE IN COMMERCE: 20170904

That isn't to say it won't be invalidated, but I can see why Amazon would also pull down Create Space books if they're pulling down ebooks.


----------



## DonovanJeremiah

RedFoxUF said:


> I couldn't make it through the whole video but she does appear to *admit that she isn't planning to enforce the TM across the board*, at least that's how I interpreted her words. She specifically says it's not all uses, just some (as determined by her own criteria). I wonder how that interfaces with the enforcement requirement to maintain a TM?
> 
> Can you license your TMs? Because now I want to TM a bunch of stuff and license use.


Am I wrong in thinking that trademark and trademark defense doesn't work like that? You can't pick and choose which entities to go after who infringe on your trademark. You either have to wholesale protect and defend or it loses its legal effectiveness.

Or am I wrong?


----------



## inconsequential

A little bit of good news:


__ https://twitter.com/i/web/status/994226749935443968


----------



## Lilpenguin1972

RWA has announced that Amazon has agreed not to remove any titles until this is resolved.  All titles have been reinstated.The RWA deserves all the kudos.


----------



## Rick Gualtieri

Lilpenguin1972 said:


> RWA has announced that Amazon has agreed not to remove any titles until this is resolved. All titles have been reinstated.The RWA deserves all the kudos.


For anyone who says the big trade orgs have zero pull with Amazon ... think again.


----------



## ImaWriter

Lilpenguin1972 said:


> RWA has announced that Amazon has agreed not to remove any titles until this is resolved. All titles have been reinstated.The RWA deserves all the kudos.


I let my membership expire years ago. I think it's time to pony up the membership fee again.


----------



## Lilpenguin1972

Rick Gualtieri said:


> For anyone who says the big trade orgs have zero pull with Amazon ... think again.


Absolutely. But keep in mind it was self published authors who seemed to be the target and RWA acted swiftly, for many authors who were not members.

They have a lot of power because they represent both trade and self published authors. I would say it acts more like a union as opposed to a big 5 publisher. Either way, it appears they worked tirelessly to get this resolved.


----------



## Susanne O

Jumping in here after all that has been said. I have only one question. WHY

Why is she doing this?

_Edited. Drop me a PM if you have any questions. - Becca_


----------



## PearlEarringLady

Lilpenguin1972 said:


> RWA has announced that Amazon has agreed not to remove any titles until this is resolved. All titles have been reinstated.The RWA deserves all the kudos.


This is excellent news! And all hail RWA for stepping up for this one. I might actually see about joining.


----------



## PearlEarringLady

Susanne. said:


> Jumping in here after all that has been said. I have only one question. WHY
> Why is she doing this?
> 
> _Edited. Drop me a PM if you have any questions. - Becca_


I can't imagine she set out to cause quite such a kerfuffle. It's not unusual for top-selling authors to trademark their author name and series names to protect their brands, and that was all she thought she was doing. Unfortunately, she crossed a line into no-no territory, but I have to assume it was inadvertant, because she didn't fully appreciate all the ramifications of her actions. I hope she now understands the difference between TMing a unique series name and TMing a common word in the English language.


----------



## dianapersaud

Susanne. said:


> Jumping in here after all that has been said. I have only one question. WHY
> 
> Why is she doing this?
> 
> _Edited. Drop me a PM if you have any questions. - Becca_


I think that sometimes people do things without considering the consequences or in this case, the worst case scenario. I read somewhere she has a movie coming up, so perhaps this was in anticipation of her becoming more famous--she was trying to protect her "brand" but went about it in the wrong way. On the other hand, it could have been a publicity stunt to drum up free publicity but went spiraling out of control.

I suppose all I can say is that sometimes we can't always see the ramifications of our actions. Though I wonder about the advice and diligence of the lawyer she hired. I'm not sure why this issue wasn't nipped in the bud by the lawyer.

_Edited. Drop me a PM if you have any questions. - Becca_


----------



## PearlEarringLady

We can expect a rash of trademarking going forward, now that the lines have been drawn.

_Edited. Drop me a PM if you have any questions. - Becca_


----------



## Becca Mills

G'morning, everyone. Posts have been edited and deleted. Unless there's some major new development, let's keep the focus off Hopkins and more on the legal situation; Amazon's stance and actions; the participation of professional organizations like the RWA; the effects of this for authors and publishers, going forward; what we might do to mitigate those effects; etc.


----------



## Rick Gualtieri

PaulineMRoss said:


> We can expect a rash of trademarking going forward, now that the lines have been drawn.
> 
> _Edited. Drop me a PM if you have any questions. - Becca_


No doubt. But my hope is that the response seen here will temper the tide, and folks will realize that the author community isn't going to roll over and play dead while they try to Trademark "The"


----------



## Rose Andrews

Lilpenguin1972 said:


> RWA has announced that Amazon has agreed not to remove any titles until this is resolved. All titles have been reinstated.The RWA deserves all the kudos.


What wonderful news! This is a positive step in the right direction. So glad to see this today.


----------



## Used To Be BH

PaulineMRoss said:


> This is excellent news! And all hail RWA for stepping up for this one. I might actually see about joining.


a large organization has more clout than any of us would individually. I'm glad RWA is using their clout in such a helpful way.


----------



## Used To Be BH

PaulineMRoss said:


> We can expect a rash of trademarking going forward, now that the lines have been drawn.
> 
> _Edited. Drop me a PM if you have any questions. - Becca_


It depends upon how this case is ultimately resolved. If I'm understanding correctly, a trademark that turns out to have already been in wide use might not stand, correct? If it doesn't stand in this case, I can't see a whole lot of other people jumping on that bandwagon.

I know I've said this already, but it seems as if the trademark folks should do a little more research before granting trademark protection to a word or phrase. It wouldn't have been hard to figure out that the word in question was already in wide use and avoid this whole problem. Unfortunately, the philosophy seems to be to grant and then let the issue be litigated if someone has a problem with the decision. Given how expensive litigation can be, it's not really good for the system to rest so heavily on it.


----------



## Lilpenguin1972

PaulineMRoss said:


> We can expect a rash of trademarking going forward, now that the lines have been drawn.
> 
> _Edited. Drop me a PM if you have any questions. - Becca_


They can try, but I also hope that this will lead to more monitoring of requests. I doubt this will even be a blip for the PTSO, but trademark requests can be challenged and rejected quickly with little costs.

I also hope that anyone pondering doing this will think twice. I am not an author, but I am a reader. It isn't only authors disgusted by this.


----------



## Bob Stewart

Lilpenguin1972 said:


> They can try, but I also hope that this will lead to more monitoring of requests. I doubt this will even be a blip for the PTSO, but trademark requests can be challenged and rejected quickly with little costs.


I think the Patent Office will realize this was at least a minor screw up on their part, and also the dangers inherent in letting authors trademark common words.

It's interesting the RWA got results so quickly from Amazon.


----------



## Lilpenguin1972

An author on absolutewrite posted an email from kdp executive relations. No mention of trademark.

https://absolutewrite.com/forums/showthread.php?336213

Looks like Amazon has finally decided to stay out of it. Good, because they seemed to have made a bad situation worse.


----------



## Becca Mills

Bill Hiatt said:


> I know I've said this already, but it seems as if the trademark folks should do a little more research before granting trademark protection to a word or phrase. It wouldn't have been hard to figure out that the word in question was already in wide use and avoid this whole problem. Unfortunately, the philosophy seems to be to grant and then let the issue be litigated if someone has a problem with the decision. Given how expensive litigation can be, it's not really good for the system to rest so heavily on it.


The Kevin Kneupper podcast interview cagnes linked above contains interesting remarks on how it all works. Kneupper says the process is not "adversarial," meaning the gov't pretty much assumes the applicant is making accurate claims. They apparently don't have the resources to investigate these situations.

Sent from my SM-G930V using Tapatalk


----------



## C. Gockel

Bill Hiatt said:


> It depends upon how this case is ultimately resolved. If I'm understanding correctly, a trademark that turns out to have already been in wide use might not stand, correct? If it doesn't stand in this case, I can't see a whole lot of other people jumping on that bandwagon.
> 
> I know I've said this already, but it seems as if the trademark folks should do a little more research before granting trademark protection to a word or phrase. It wouldn't have been hard to figure out that the word in question was already in wide use and avoid this whole problem. Unfortunately, the philosophy seems to be to grant and then let the issue be litigated if someone has a problem with the decision. Given how expensive litigation can be, it's not really good for the system to rest so heavily on it.


After reading up on trademark, I don't think this will stand AT. ALL. For a multitude of reasons. For one, the trademark can't stand if someone else had "Cocky" in their series title FIRST. There are a bunch of authors who did. Next, all that must be shown is the POTENTIAL to cause harm. Titles that predated hers were taken down by Amazon. ACTUAL HARM can be proven. There were a few more points that I read up on, but her legal standing is really shaky here.

From what I've heard, the TM department is horribly understaffed and so is just rubber stamping things and waiting for them to be cleared through litigation. Which ups the incidences of "Trademark Bullying" which creates more incentive to trademark words / phrases that are in common use. It can cost $20,000 to stand up to a TM infringement case. Because of the way the U.S. court system works (i.e., the Trademark "bully" doesn't have to pay the defenses lawyer fees) this is unlikely to stop.

The best defense is really public outcry and boycotts (see the case of "Hon" in Baltimore: http://baltimorepostexaminer.com/cafe-hon-gordon-ramsay-fight-liberate-word-revisited/2014/04/16 and "React" by the Fine Brothers: https://kotaku.com/popular-youtubers-try-to-trademark-react-1756331442 .)

This is really unfortunate.


----------



## 97251

Speaking of React, this is the attitude that could have prevented further outcries against the Cocky author : https://kotaku.com/popular-youtubers-stop-trying-to-trademark-reacts-apol-1756534293

Anyway, back to the issue, I fear this is just a symptom of a publishing mentality extremely focused on visibility, tending towards predatory tactics, and focused on competition.

The Cocky series author herself claimed that other authors were planning on doing similar things, and she has a few defenders who believe that this is a natural development in publishing, and that it's about branding.

Now, don't get me wrong, my degrees are not in business, but I'm pretty sure TMing a word is not branding. I'm also pretty sure you can't create a "brand" if you write stories similar to everyone else (not that there's anything wrong in that), in a style everyone writes, with covers similar to everyone. Again, nothing wrong with any of those tactics, but I don't think you can create a brand from following the crowd. Ok, the author in question does believe that her covers are completely unique and that her idea about stories based on brother is completely unique, so that's her justification. Even then, her branding should be in her writing, her style, her characters. Not in a word.

But I don't think anyone will TM roomie anytime soon (ok, a part of me kind of wished someone TMd roomie, senator, doctor, etc.).

Still, I fear more predatory practices and attempts at unjust competition. Maybe there will be more trademarking, just subtler. Maybe more people will look into ways of monopolizing keywords (which the author said she wanted, in her case based on a belief that the keyword belonged to her).

It's something to keep an eye on.

I think this article is amazing at explaining the mentality behind cockygate.

I hope it's all right to link it, since it's about a publishing attitude, rather than any specific group. 
https://medium.com/@CeeEmStone/how-indie-publishing-got-all-cocked-up-1731733d0340


----------



## RJ Crayton

FYI, this article makes pretty fascinating comparisons to what is going on in romance and the craft beer industry. https://boingboing.net/2018/05/09/faleena-hopkins.html

From the article: "[T]rademark -- like copyright -- has expanded in both its scope and its abuse over decades, creating trademark trolls who insist that trademark is the right to own commonly used words and threaten people who utter them in vain, and not merely a way to protect the public from fraudulent usage.

Ground zero for this the craft beer industry, whose shenanigans are so bizarre that they've spawned a whole genre of Techdirt posts. Craft beer brewers use puns to name their beers, and they use similar visual conventions in their marketing and trade dress, and every craft brewer is seemingly convinced that they were the first person to come up with a timeworn pun or illustration, with the result being that these brewers are spending more time threatening and suing each other than they are brewing actual beer.

The contagion has spread to romance novels. The genre is similar to craft beer in some ways: its practitioners are largely independents who are passionate about their work, enjoy a close relationship with their customers, and are inventing a new craft practice that is rising up to compete with a huge industry dominated by a few giant corporations.

Like craft beer, fans and pros in the romance sector are largely collegial, trading tips and helping one another along in a spirit of camaraderie...." 
https://boingboing.net/2018/05/09/faleena-hopkins.html


----------



## katrina46

PaulineMRoss said:


> We can expect a rash of trademarking going forward, now that the lines have been drawn.
> 
> _Edited. Drop me a PM if you have any questions. - Becca_


I kind of doubt it. All this did was hurt her image. I don't think anyone else wants to go there seeing all the fallout. I would never want the kind of attention she's been getting.


----------



## MarilynVix

Bill Hiatt said:


> It depends upon how this case is ultimately resolved. If I'm understanding correctly, a trademark that turns out to have already been in wide use might not stand, correct? If it doesn't stand in this case, I can't see a whole lot of other people jumping on that bandwagon.
> 
> I know I've said this already, but it seems as if the trademark folks should do a little more research before granting trademark protection to a word or phrase. It wouldn't have been hard to figure out that the word in question was already in wide use and avoid this whole problem. Unfortunately, the philosophy seems to be to grant and then let the issue be litigated if someone has a problem with the decision. Given how expensive litigation can be, it's not really good for the system to rest so heavily on it.


I kind of think it was her just trying to protect her brand, but not realizing how it would all be executed, and not considering Amazon's heavy-handed hammer fall tactics. I'm sure her request went to the bots, and then the Zon's way is to pull all of the books and review later. Of course, the human authors, having books pulled and such, went right to asking the internet and RWA for help. It's not the only time RWA has had to help authors with Zon tactics. Remember all the recategories that happened end of March?

So, maybe, with pressure from the larger writing groups like RWA, Amazon will be a little more thoughtful in their tactics. The books pulled were on Amazon, but everyone was freaking because it's such a big retailer and a large income for most authors. Which just shows how much power the Zon has over authors and the industry right now.


----------



## C. Gockel

katrina46 said:


> I kind of doubt it. All this did was hurt her image. I don't think anyone else wants to go there seeing all the fallout. I would never want the kind of attention she's been getting.


Some people don't care about what other people think. They just want the $$$$. That said, if her movie falls through now, and she loses her TM defense, I think it will deter a lot of people for a little while at least.


----------



## katrina46

C. Gockel said:


> Some people don't care about what other people think. They just want the $$$$. That said, if her movie falls through now, and she loses her TM defense, I think it will deter a lot of people for a little while at least.


It's not what people think, it's what they'll do. She's been sabotaged a hundred and one ways since this started. Her Facebook isn't even available right now. Someone reported it as inappropriate. None of that helps her business. I'm not condoning any of it, to be clear. But that's what happens when you get an online mob after you. I've seen it before. It used to be there was no such thing as bad publicity, but that's not true anymore when your online image is so closely tied to your income. I think maybe I just think more about it having been an erotica author when I first started writing. You're always wondering what the less ethical competition might do to sabotage you. Becca Mills probably knows what I mean.


----------



## Atlantisatheart

Day Leitao said:


> and that her idea about stories based on brother is completely unique, so that's her justification. Even then, her branding should be in her writing, her style, her characters.


There has been a series since 2013 in PRN called His Mate - Brothers with over 70 books in it so, err, nope - she's wrong again.

ETA; didn't she used to write in PNR? How could she overlook such a popular series?


----------



## Elizabeth S.

katrina46 said:


> Her Facebook isn't even available right now. Someone reported it as inappropriate.


That is very surprising to me, considering how difficult it is to get Facebook to remove pages that actually ARE inappropriate.


----------



## Monique

katrina46 said:


> Someone reported it as inappropriate.


How do we know this? I'd be surprised if that were the case. I assumed she "temporarily" removed it because her page was overrun with antagonism.

_edited -- PM if you have questions._


----------



## katrina46

Monique said:



> How do we know this? I'd be surprised if that were the case. I assumed she "temporarily" removed it because her page was overrun with antagonism.


Could be. I just figured that what's it was because that's what mine looks like when I go to facebook jail. I'm a political junkie. I go there a lot.

_edited quoted post -- PM if you have questions._


----------



## Crystal_

I don't think anyone would have objected to her TMing "The Cocker Brothers" or even "The Cocky Series." Those are clear series titles that are unique, even if Cocky is a rather generic word.

But TMing the word Cocky in all titles sets a dangerous precedent.

TMing your series or author name still makes sense, but the scope needs to be reasonable, and you need to use a phrase that other authors aren't already using.


----------



## katrina46

Elizabeth S. said:


> That is very surprising to me, considering how difficult it is to get Facebook to remove pages that actually ARE inappropriate.


Facebook is a lot like zon in that regard. They will jail someone for a mild comment, but leave a comment that's completely off the rails. But others say that's not why hers is down.


----------



## Debbie Bennett

Has anyone linked to this (apologies if so). This explains a lot of what may have been behind it, IMO. https://cassiesharpbooks.wordpress.com/2018/05/07/open-letter-to-faleena-hopkins/


----------



## Fel Beasley

Day Leitao said:


> Speaking of React, this is the attitude that could have prevented further outcries against the Cocky author : https://kotaku.com/popular-youtubers-stop-trying-to-trademark-reacts-apol-1756534293
> 
> Anyway, back to the issue, I fear this is just a symptom of a publishing mentality extremely focused on visibility, tending towards predatory tactics, and focused on competition.
> 
> The Cocky series author herself claimed that other authors were planning on doing similar things, and she has a few defenders who believe that this is a natural development in publishing, and that it's about branding.
> 
> *snip*


I don't think we should make assumptions about things the author claims. Any defenders I've seen have been very specific that they meant (and mean to or already have) trademarking their specific series name. They weren't defending her. They were defending the idea that trademarking to protect brand is not new and can be very smart.

I've seen no one actually publicly approve of what is going on more specifically than that, and no one has privately where I can see, not even some who are being accused of supporting.


----------



## Becca Mills

Folks, the focus of the thread seems to be mostly on discussing Hopkins as greedy, untruthful, etc., at this point. My edits, deletions, and snowball waving haven't been enough to keep the conversation from going in that direction, probably because 1) there's been no substantive news (that I'm aware of) since Amazon's RWA-assisted decision and 2) there is much anger and concern over what's happened. Understandable ... but piling on is not the KB way.

In an effort to head off a thread lock, I'll call attention to this suggestion from Atlantisatheart and ImaWriter, from way upthread:



ImaWriter said:


> Atlantisatheart said:
> 
> 
> 
> I think we all need to keep an eye on the trademark site for anything related to ebooks and books now. How many chancers will now try to trademark words for a payday or to try to knock out the competition? It's a big can of worms that's been opened by this author and we all need to be careful.
> 
> 
> 
> This is what I was thinking. How about a thread here that has the necessary link to the TM office? If a bunch of us are checking regularly and keeping the thread on page 1, between the group of us we can spot any shenanigans and beat them down before they get this far. What do the mods have to say about something like that?
Click to expand...

It'd be fine to have a Writers' Cafe thread to keep track of potentially problematic trademark applications, though it'd have to be a member-initiated and member-run effort, like other long-running threads. See the Kindle Scout thread as an example, which was taken in hand by Steven Vernon and others, and has been regularly on p. 1 for more than three years, accumulating about 26,000 posts and 2 million views. That kind of perpetual thread can work, if a group of members commits to it.

This isn't something I know much about (I guess that had better change for all of us, eh?), but my understanding is that trademark _applications _are relatively easy/cheap to stop, but that once trademarks are granted, getting them taken down is a huge PITButt. In his podcast appearance on Horrible Writing, Kevin Kneupper explained how extraordinarily costly such efforts are. If I'm remembering correctly, he said the document he's submitted to the U.S. Patent and Trademark Office probably represents $10,000 of legal work (at his $400/hour rate), and that's just the initial step. He said the patent cases he used to litigate regularly ran to the millions of dollars in costs. So catching applications early and supplying the USPTO with the info it needs to make a better-informed decision seems like the way to go.

Is this something KBers could keep track of, collectively? Is there a format for objecting to an application? Thoughts?


----------



## Concerned writer

Becca Mills said:


> It'd be fine to have a Writers' Cafe thread to keep track of potentially problematic trademark applications, though it'd have to be a member-initiated and member-run effort, like other long-running threads. See the Kindle Scout thread as an example, which was taken in hand by Steven Vernon and others, and has been regularly on p. 1 for more than three years, accumulating about 26,000 posts and 2 million views. That kind of perpetual thread can work, if a group of members commits to it.
> 
> This isn't something I know much about (I guess that had better change for all of us, eh?), but my understanding is that trademark _applications _are relatively easy/cheap to stop, but that once trademarks are granted, getting them taken down is a huge PITButt. In his podcast appearance on Horrible Writing, Kevin Kneupper explained how extraordinarily costly such efforts are. If I'm remembering correctly, he said the document he's submitted to the U.S. Patent and Trademark Office probably represents $10,000 of legal work (at his $400/hour rate), and that's just the initial step. He said the patent cases he used to litigate regularly ran to the millions of dollars in costs. So catching applications early and supplying the USPTO with the info it needs to make a better-informed decision seems like the way to go.
> 
> Is this something KBers could keep track of, collectively? Is there a format for objecting to an application? Thoughts?


This is a great idea. I'm not an expert on this by any means, but my understanding is that there's an easy online form on the USPTO website for objecting to a trademark before it's granted.


----------



## Atlantisatheart

Becca Mills said:


> Is this something KBers could keep track of, collectively? Is there a format for objecting to an application? Thoughts?


I'm in. Just having this thread with authors regularly checking in should be red flag enough to keep the chancers and blackhats away from wasting their money trying to TM words.

Nice one Becca and KBoards, and kudos to ImaWriter for suggesting it.


----------



## Becca Mills

Concerned writer said:


> This is a great idea. I'm not an expert on this by any means, but my understanding is that there's an easy online form on the USPTO website for objecting to a trademark before it's granted.


Well that would make it pretty easy. For evidence, I wonder if it's as simple as pointing out that the applicant was not the first to use the would-be trademark. Y'all should see Passive Guy's commentary on the "first to use" principle, if you haven't already. So, in the case of "cocky," you'd just ... use the form to point out that there are older books and series using "cocky," and provide some links?


----------



## Concerned writer

Becca Mills said:


> Well that would make it pretty easy. For evidence, I wonder if it's as simple as pointing out that the applicant was not the first to use the would-be trademark. Y'all should see Passive Guy's commentary on the "first to use" principle, if you haven't already. So, in the case of "cocky," you'd just ... use the form to point out that there are older books and series using "cocky," and provide some links?


There are a bunch of templates online for it, but I've never done it before, so I don't know what might be a good one or not. I'll let someone else chime in if anyone has experience doing it.


----------



## Becca Mills

I found this detailed description of the opposition process. It sounds sort of involved, actually, and not free. It needs to be initiated within 30 days of the publication of the potential trademark in the Trademark Official Gazette, so staying on top of potential problems would mean eyeballing some large number of newly published marks per week and then connecting potentially problematic marks to the authors who would be enough impacted by them to be willing and able to undertake the opposition process. There's about 6,800 marks up there right now for potential opposition, so it seem like _a lot_ of them are published every week. But only a fraction of those will pertain to books, and there is a search feature.


----------



## ImaWriter

I'm all in for this. 

In the above mentioned podcast, when asked what the community could do to stop this happening again, Kevin Kneupper says he feels the only way is to keep abreast of what TMs author's are applying for. His suggestion is that writers in each genre keep an eye on what's happening in their 'hood. So if we had a dedicated threat, maybe there could be a shout out from someone saying I've checked romance today, or I've checked UF today. Or this week, or whatever. Then we would know not to waste our time if someone else has already taken the time.


----------



## Concerned writer

I don't want to steer anyone wrong so I'm hoping someone with experience doing this might chime in. This is what I found on the USPTO website regarding filing a letter of protest: https://www.uspto.gov/trademark/trademark-updates-and-announcements/letter-protest-practice-tip and the online form is here: https://teas.uspto.gov/ccr/lop


----------



## spellscribe

Someone on twitter - I want to say Courtney Milan, but it could have been someone else - said she would start tweeting or blogging monthly about potentially problematic trademark applications. So, no <made up word or really particular phrase> stuff but common, often used terms or phrases that are likely to affect numerous authors.

It will not be a comprehensive list but should give us a great resource to add to such a thread.


----------



## Becca Mills

Concerned writer said:


> I don't want to steer anyone wrong so I'm hoping someone with experience doing this might chime in. This is what I found on the USPTO website regarding filing a letter of protest: https://www.uspto.gov/trademark/trademark-updates-and-announcements/letter-protest-practice-tip and the online form is here: https://teas.uspto.gov/ccr/lop


This looks much more relevant than what I dug up. Maybe what I posted pertains more to the process Kevin Kneupper is pursuing now? The above seems much simpler and cost-free.

One thing I don't get:



> File the letter of protest as soon as possible after the subject application is filed and preferably before publication. Pre-publication letters of protest are accepted if the evidence is relevant and supports a reasonable ground for refusal. After publication, a letter of protest is only accepted if the evidence supports a clear error on the part of the USPTO in approving the mark for publication. A letter of protest filed after the thirty-day opposition period is denied as untimely.


How would it be possible to file a protest before publication? Publication is what let's us know an application is in the works ... right?



spellscribe said:


> Someone on twitter - I want to say Courtney Milan, but it could have been someone else - said she would start tweeting or blogging monthly about potentially problematic trademark applications. So, no <made up word or really particular phrase> stuff but common, often used terms or phrases that are likely to affect numerous authors.
> 
> It will not be a comprehensive list but should give us a great resource to add to such a thread.


Yes,

__ https://twitter.com/i/web/status/993180430667890688 Courtney Milan. That would be terrific, especially since she'll bring an attorney's eye to the search.


----------



## Forgettable

.


----------



## ........

Regarding monitoring, some lawyer somewhere said that what they do is read the monthly gazette which publishes trademarks for the thirty day opposition window. They check the class (because we don't care about farm machiney trademarks) and read the few there are.

We could do this but of course it's always the next opposition  step that is costly. 

Something Kevin touched on was the idea of making this first example so costly in all ways that no author will do it again. Still doesn't really stop it though. 

Campaigning for trademark reform might be a stronger direction.


----------



## 97251

........ said:


> Campaigning for trademark reform might be a stronger direction.


I think this would be easier. Although, frankly, the law as it stands right now should have prevented "cocky" from being trademarked for a series. In my belief, the existing TM does not give the author the right to go after the word in titles, but still, cocky in itself is not distinctive enough, and is not the name of the series. "The Cocky series", or "The Cocker Brothers" identify the product; cocky doesn't.

Anyways, it could still be clearer if people weren't allowed to trademark single, existing words or common expressions in relation to books or ebooks. Ebooks don't go out of print, and 50 years from now we might have a billion ebooks. So single, existing words shouldn't be allowed.

Back to the example, "The Twilight Saga" is trademarked, and it's fine. Twilight isn't.

Hasbro can launch a book series entitled "Twilight Sparkle and Friends" without a glitch.

So, in terms of effort, perhaps using cockygate s an example to petition for changes in trademark regulation would be an easier goal.


----------



## spellscribe

http://booksandquillsmag.com/cockygate-interview-kneupper/ interview with the lawyer


----------



## Becca Mills

........ said:


> Regarding monitoring, some lawyer somewhere said that what they do is read the monthly gazette which publishes trademarks for the thirty day opposition window. They check the class (because we don't care about farm machiney trademarks) and read the few there are.
> 
> We could do this but of course it's always the next opposition step that is costly.
> 
> Something Kevin touched on was the idea of making this first example so costly in all ways that no author will do it again. Still doesn't really stop it though.
> 
> Campaigning for trademark reform might be a stronger direction.


As I understand it, the "Letter of Protest" option Concerned writer pointed to is free and pretty straightforward. It's not like the expensive, lengthy process Keven Kneupper is pursuing for "cocky." A quick explanation: https://thetrademarkfirm.com/trademark-protest-try-a-letter-of-protest/

But yeah, both trademark and copyright are open to abuse, as currently set up. Not sure how to make these systems better, though. I think it'll take a bear of bigger brain than I to figure out how to improve them.


----------



## Becca Mills

spellscribe said:


> http://booksandquillsmag.com/cockygate-interview-kneupper/ interview with the lawyer


He says a couple times that we need to catch problematic trademarks before they're issued.


----------



## katrina46

........ said:


> Regarding monitoring, some lawyer somewhere said that what they do is read the monthly gazette which publishes trademarks for the thirty day opposition window. They check the class (because we don't care about farm machiney trademarks) and read the few there are.
> 
> We could do this but of course it's always the next opposition step that is costly.
> 
> Something Kevin touched on was the idea of making this first example so costly in all ways that no author will do it again. Still doesn't really stop it though.
> 
> Campaigning for trademark reform might be a stronger direction.


I think making it costly might stop it faster than anything. Back when the fake take down notices were big that scam eventually died down because one author sued and Becca Mills didn't cave and pay the guy. If I'm someone contemplating this to monopolize the word Billionaire, and I see the first one who did something like that got buried in legal fees, I'm going to move on to my next plan. People do things like this to make money, not lose it. That's why you'll sometimes see a judge hand down a harsh sentence for what seems like a soft crime. They're making an example out of that person so people don't think about doing it.


----------



## Guest

Part of the problem was that, in the past, if you wanted to go after someone for a trademark violation, it took a LOT OF WORK. You couldn't just call the corporate head at Barnes and Noble and say, "Hey, this book violates my trademark, so take it down" and have them do anything. Because they didn't have to and it wasn't there business and they really had no control anyway.

But the problem is rooted in the flimsy nature of the DMCA, which should have ZERO to do with trademark but has become a very cheap weapon to use. Under the DMCA, when a website receives a notice, they are required to investigate the claim to maintain their "safe harbor" status. They are NOT required to actually take anything down automatically. What the law affords for them to do is to:

1. Review the DMCA notice
2. Inform the impacted party that they received a notice
3. Review the counter-notice from the impacted party
4. Make a decision

Theoretically, a website could look at this nonsense and say, "Sorry, sunshine, but this is a trademark issue, not a copyright issue. Deal with it yourself." The problem is that almost every website has automated this process and, to do the least amount of work possible, just automatically removes anything they get a DMCA notice for and then leaves it to the impacted party to fight like Hell to get it resolved. 

If websites like Amazon were not allowing Trademark holders to use the DMCA as a method of removing works, then these sort of things would be less invasive. The Trademark holder would actually have to do the real work of proving the work in question challenged the trademark.


----------



## Taking my troll a$$ outta here

Bards and Sages (Julie) said:


> Part of the problem was that, in the past, if you wanted to go after someone for a trademark violation, it took a LOT OF WORK. You couldn't just call the corporate head at Barnes and Noble and say, "Hey, this book violates my trademark, so take it down" and have them do anything. Because they didn't have to and it wasn't there business and they really had no control anyway.
> 
> But the problem is rooted in the flimsy nature of the DMCA, which should have ZERO to do with trademark but has become a very cheap weapon to use. Under the DMCA, when a website receives a notice, they are required to investigate the claim to maintain their "safe harbor" status. They are NOT required to actually take anything down automatically. What the law affords for them to do is to:
> 
> 1. Review the DMCA notice
> 2. Inform the impacted party that they received a notice
> 3. Review the counter-notice from the impacted party
> 4. Make a decision
> 
> Theoretically, a website could look at this nonsense and say, "Sorry, sunshine, but this is a trademark issue, not a copyright issue. Deal with it yourself." The problem is that almost every website has automated this process and, to do the least amount of work possible, just automatically removes anything they get a DMCA notice for and then leaves it to the impacted party to fight like Hell to get it resolved.
> 
> If websites like Amazon were not allowing Trademark holders to use the DMCA as a method of removing works, then these sort of things would be less invasive. The Trademark holder would actually have to do the real work of proving the work in question challenged the trademark.


I've been wondering about that distinction but didn't understand it until you explained it. Thank you, Julie.
It seems like in this case there are a lot of terms being conflated (trademark, copyright) and confused with how it applies (DMCA). It's really important to understand the differences and how they relate to each other legally.

It does seem like a good idea to monitor for TM application words for our industry, but on the flip side it is something that would take up a massive amount of time. Hopefully this case will send a message that TMing to destroy your competition is not a viable part of a "marketing" plan.


----------



## Becca Mills

Bards and Sages (Julie) said:


> Part of the problem was that, in the past, if you wanted to go after someone for a trademark violation, it took a LOT OF WORK. You couldn't just call the corporate head at Barnes and Noble and say, "Hey, this book violates my trademark, so take it down" and have them do anything. Because they didn't have to and it wasn't there business and they really had no control anyway.
> 
> But the problem is rooted in the flimsy nature of the DMCA, which should have ZERO to do with trademark but has become a very cheap weapon to use. Under the DMCA, when a website receives a notice, they are required to investigate the claim to maintain their "safe harbor" status. They are NOT required to actually take anything down automatically. What the law affords for them to do is to:
> 
> 1. Review the DMCA notice
> 2. Inform the impacted party that they received a notice
> 3. Review the counter-notice from the impacted party
> 4. Make a decision
> 
> Theoretically, a website could look at this nonsense and say, "Sorry, sunshine, but this is a trademark issue, not a copyright issue. Deal with it yourself." The problem is that almost every website has automated this process and, to do the least amount of work possible, just automatically removes anything they get a DMCA notice for and then leaves it to the impacted party to fight like Hell to get it resolved.
> 
> If websites like Amazon were not allowing Trademark holders to use the DMCA as a method of removing works, then these sort of things would be less invasive. The Trademark holder would actually have to do the real work of proving the work in question challenged the trademark.


The problem is that retail sites have to take stuff down quickly if they want to be assured of safe harbor (512 c 1 A iii), and the right of a retailer to sell what it wants trumps the DMCA's supposedly mandated counter-notice and restoration process. This is how it was explained to me, anyway, back when I had my copyright problem. Retailers could _choose _to follow the counter-notification process, but from a legal perspective, why take even a tiny risk when you can take no risk at all? The court of public opinion might work from time to time, but I don't think there's a legal means of forcing a store to sell a particular thing. My understanding is that no one has ever sued to try to enforce the DMCA's counter-notification process on an online retailer because it's a sure loser. IANAL, of course, but this is what I scraped together in trying to get a handle on my own situation.

Although the DMCA doesn't cover trademark, I bet Amazon's thinking would be the same: why take any legal risk when you can take zero? That's why the restoration of Tara Crescent's books seems so significant to me.



katrina46 said:


> I think making it costly might stop it faster than anything. Back when the fake take down notices were big that scam eventually died down because one author sued and Becca Mills didn't cave and pay the guy.


Thanks, katrina, but I think you're giving me way too much credit! The guy never even got to the stage of demanding money. I think it was an attempt at copyright extortion, but who really knows?



EB said:


> It does seem like a good idea to monitor for TM application words for our industry, but on the flip side it is something that would take up a massive amount of time.


We'd definitely need to spread the work around among a group of people. Finding potentially problematic applications would be the "quick" part, I suspect. Doing the research to assemble evidence for the letter of protest would be time-consuming, and it would have to be done immediately.


----------



## 97251

https://twitter.com/kneupperwriter/status/994608460472832000

Yikes. Someone-I assume not book related- is trying to TM rebellion.

Watching is important.

I still feel that the public outcry could be used to pressure for a change in TM regulations.

English has only so many words.

Edit: Now there's a Cockybot to prevent more stuff like this from happening: https://twitter.com/cockybot


----------



## Becca Mills

Day Leitao said:


> https://twitter.com/kneupperwriter/status/994608460472832000
> 
> Yikes. Someone-I assume not book related- is trying to TM rebellion.
> 
> Watching is important.
> 
> I still feel that the public outcry could be used to pressure for a change in TM regulations.
> 
> English has only so many words.


The text of Kevin Kneupper's tweet:



> Wow - this is a real thing. A trademark application on "Rebellion" now before the @uspto that covers all forms of entertainment including books video games etc. Just published for opposition and in the danger zone. But not issued yet!


My impression (which could be wrong ... I don't feel up to speed on TMs yet) is that when the USPTO publishes a potential mark, it means they think it's probably okay. The ones they see as obviously not okay don't make it to the publication stage. I think? If so ... how could trademarking a word like "rebellion" in such a broad way possibly be okay?


----------



## Rick Gualtieri

Becca Mills said:


> My impression (which could be wrong ... I don't feel up to speed on TMs yet) is that when the USPTO publishes a potential mark, it means they think it's probably okay. The ones they see as obviously not okay don't make it to the publication stage. I think? If so ... how could trademarking a word like "rebellion" in such a broad way possibly be okay?


At the very least, I'm thinking the Star Wars folks might be a bit concerned about that.


----------



## Becca Mills

SummerNights said:


> It's been approved? Wow, speechless...
> 
> http://tsdr.uspto.gov/documentviewer?caseId=sn87522869&docId=NOP20180425082418#docIndex=1&page=1


So, if I understand things correctly, between now and the mark's May 15 publication in the Gazette is the best window to file a letter of protest. After publication, there's a 30-day window in which the letter of protest may still be considered, but it's not as certain (??).

Wish I had a better grasp on this stuff ...


----------



## Guest

Becca Mills said:


> So, if I understand things correctly, between now and the mark's May 15 publication in the Gazette is the best window to file a letter of protest. After publication, there's a 30-day window in which the letter of protest may still be considered, but it's not as certain (??).
> 
> Wish I had a better grasp on this stuff ...


Yes, I believe this is the time to oppose.


----------



## C. Gold

There's 338 pages of books when I searched the Kindle store for rebellion.


----------



## C. Gold

SummerNights said:


> There's a TV show, too, and I imagine plenty of video games.
> 
> https://www.imdb.com/title/tt4699982/reference


Yeah, I just searched on books alone. How is this even a thought?


----------



## Becca Mills

SummerNights said:


> Yes, I believe this is the time to oppose.


I wonder how Kneupper can tell the mark is intended to cover "all forms of entertainment including books video games etc." It is because no limitations are specified?


----------



## dianapersaud

Rick Gualtieri said:


> At the very least, I'm thinking the Star Wars folks might be a bit concerned about that.


On Amazon, Star Wars + Rebellion pulls up at least 7 items on the first page.
Can't wait to see Disney get involved in this...


----------



## C. Gockel

On the issue of rebellion ... he is saying that they won't go after book titles but the wordmark is EXTENSIVE: Christmas ornaments, linens, caps, brochures, novels, books ... so we just have to trust him. This is so awful.

http://tmsearch.uspto.gov/bin/showfield?f=doc&state=4804%3Auym2t0.2.8


----------



## Becca Mills

C. Gockel said:


> On the issue of rebellion ... he is saying that they won't go after book titles but the wordmark is EXTENSIVE: Christmas ornaments, linens, caps, brochures, novels, books ... so we just have to trust him. This is so awful.
> 
> http://tmsearch.uspto.gov/bin/showfield?f=doc&state=4804%3Auym2t0.2.8


I think that link was specific to your search session, C. Can you explain how you found that info?

ETA: Nevermind, found it. Go to http://tmsearch.uspto.gov/, then choose the basic word mark search.


----------



## Becca Mills

SummerNights said:


> These are the classes that I see: 9, 16, 21, 24, 25, 28, 35, 38, 41, 42, 45
> 
> They include everything under the Sun, from computers to household utensils to advertising to publishing to education to entertainment to translations etc.


I'm seeing literally thousands of product categories, including "Paper and cardboard; Printed matter, namely, pamphlets, brochures, advertising booklets, books, magazines, manuals, and periodicals in the field of action, adventure, animation, biography, comedy, comics, computer games, crime, documentary, drama, family, fantasy, films, film-noir, games, history, horror, music, musical, mystery, romance, science-fiction, sport, thriller, war and western." Haven't come across ebooks yet, but still ... no one wants to be locked out of using "rebellion" for paperbacks.

ETA: Here's that whole class of products:










E(again)TA:

Does seem like ebooks would be included here: "downloadable electronic publications in the nature of magazines, journals, novels, books, comics in the field of in the field of action, adventure, animation, biography, comedy, comics, computer games, crime, documentary, drama, family, fantasy, films, film-noir, games, history, horror, music, musical, mystery, romance, science-fiction, sport, thriller, war and western; downloadable computer games software; downloadable movies; downloadable publications in the nature of magazines, journals, novels, books, comics in the field of in the field of action, adventure, animation, biography, comedy, comics, computer games, crime, documentary, drama, family, fantasy, films, film-noir, games, history, horror, music, musical, mystery, romance, science-fiction, sport, thriller, war and western ..." (appears about 2/3 of the way down the IC 009. US 021 023 026 036 038 paragraph)


----------



## 101569

He appears to be creating a video game, but yeah if Disney gets a hold of him its going to be a blood bath.


----------



## Victoria Wright

idontknowyet said:


> He appears to be creating a video game, but yeah if Disney gets a hold of him its going to be a blood bath.


Or a bath of blood?


----------



## Atlantisatheart

It does say books, can that not cover ebooks?


----------



## Becca Mills

Atlantisatheart said:


> It does say books, can that not cover ebooks?


I bet it doesn't (different product class?), but in another paragraph, it does address "downloadable electronic publications," including "books." I think that must be the ebook part.


----------



## Atlantisatheart

Becca Mills said:


> I bet it doesn't (different product class?), but in another paragraph, it does address "downloadable electronic publications," including "books." I think that must be the ebook part.


Wow, I can already think of quite a few sci-fi authors whose books are going to be affected should this guy start issuing takedown orders.


----------



## 97251

I do not accept the new Terms of Service


----------



## Kwrite

SummerNights said:


> It's been approved? Wow, speechless...
> 
> http://tsdr.uspto.gov/documentviewer?caseId=sn87522869&docId=NOP20180425082418#docIndex=1&page=1


By someone in the UK.


----------



## 101569

I can see it applying to ebooks and paperbacks, because of gamed guides and such created in relation to game play and story lines. They just usually use some form of created named instead of common word.


----------



## Ros_Jackson

Rebellion have been around for years, so I'm surprised they're just filing now. They do a lot of stuff in a lot of product areas, so the extent of that listing isn't surprising - there's also some repetition in there. However, several times it mentions "books" without the qualification that it's just their publisher imprint. Having the publisher imprint trademarked is fine, but the way it's worded is so broad that it *could* mean titles or series names, and that's not on. They really need to clarify the wording so that they can't do everything this trademark implies, and also so they don't have to in order to enforce it properly.


----------



## Becca Mills

Someone seems to have created a bot to scan trademark applications and pluck out those that mention "book(s)" and "romance." Hits reported via Twitter: https://twitter.com/cockybot


----------



## dianapersaud

The same people who applied to TM Rebellion have also applied to TM "Judge Dredd"

It looks like they copy+pasted the same information from one form to the next.


----------



## D.A. Boulter

dianapersaud said:


> The same people who applied to TM Rebellion have also applied to TM "Judge Dredd"
> 
> It looks like they copy+pasted the same information from one form to the next.


Well, I think that the Judge Dredd trademark might be in order. They appear to publish it:

https://en.wikipedia.org/wiki/Rebellion_Developments
https://en.wikipedia.org/wiki/Judge_Dredd


----------



## dianapersaud

D.A. Boulter said:


> Well, I think that the Judge Dredd trademark might be in order. They appear to publish it:
> 
> https://en.wikipedia.org/wiki/Rebellion_Developments
> https://en.wikipedia.org/wiki/Judge_Dredd


Thanks. That also explains why 2000AD has been TM too!


----------



## Cactus Lady

https://twitter.com/jackiebarbosa/status/994664524979494913

If you read down this thread, you'll see where the Rebellion dude says he doesn't know what the trademark application covers because "it was handled by an agent."

As my son says, there is neither enough head nor enough desk for the amount of headdesk required here.


----------



## Ros_Jackson

Jason Kingsley has asked his agent to fix the Rebellion trademark application so that authors need not worry about having rebellion in a book title. I'm cautiously optimistic until we see the exact wording, but he seems to be handling this the right way.


----------



## katrina46

Ros_Jackson said:


> Jason Kingsley has asked his agent to fix the Rebellion trademark application so that authors need not worry about having rebellion in a book title. I'm cautiously optimistic until we see the exact wording, but he seems to be handling this the right way.


 Yeah, I have no problem with people trademarking their work. They probably should. They just don't have to do it in a way that wipes out anyone writing in the same genre or niche. There's protecting yourself and then there's just being a jerk to anyone you view as competition.


----------



## Used To Be BH

Ros_Jackson said:


> Jason Kingsley has asked his agent to fix the Rebellion trademark application so that authors need not worry about having rebellion in a book title. I'm cautiously optimistic until we see the exact wording, but he seems to be handling this the right way.


That is an encouraging development. Ideally, a trademark should be narrowly defined, so it protects the mark's holder against deliberately confusing competition without unduly restricting people whose work couldn't be confused with what is covered by the trademark. This is especially true when individual words or short phrases are involved.


----------



## levz

It looks like the word "embrace" has also been trademarked for ebooks and paperbacks "in the field of romance" according to CockyBot ( https://twitter.com/cockybot/status/994486769067343872 )

Not sure if it's within the 30 days to protest, but I'd assume it's the kind of word some romance writers might want to use.


----------



## nikkykaye

It appears to be trademarked by Entangled, and I believe it is one of their imprints. However, “the mark consists of standard characters without claim to any particular font style, size or color.”

Concerning...


----------



## Jena H

We might be approaching the point that we're going to have trouble coming up with book titles we can use.


----------



## AltMe

Just for the laugh - From an Australian author. 
And before anyone gets upset, this is not a real book, just a mockup cover.


----------



## jb1111

That Twitter CockyBot thing seems to have latched onto a lot of disturbing trends. I see increasing numbers of names used, ostensibly those of authors.

One author in particular (the document says the name is of a "living person") has claims which state "the mark consists of standard characters without claim to any particular font style, size or color." I saw several others which appeared to be similar situations. All recent apps, of course (recent, meaning applied for last year or earlier this year).

So if you happen to have the same name as that author, and write a book under your own name -- in that genre -- you're liable. At least one app doc I saw _wasn't specific to genre_ -- similar to another TM discussed here in this thread.

Should someone be forced to change their pen name if they happen to write in the same genre as a big name writer who has TMed their own name?

I mean, on the outside, it's no big deal. What's in a name? Pen names are relatively easy to create. But some genres are herkin' massive.

Can, meet worms.

PS, after perusing a couple of these apps, I would suggest any author deciding to TM their pen name do it under an LLC or some other form of business ownership. The docs often contain your real name and real address and other personal info -- all public information. Very dicey business in the internet age. Yikes.


----------



## horse_girl

jb1111 said:


> So if you happen to have the same name as that author, and write a book under your own name -- in that genre -- you're liable. At least one app doc I saw _wasn't specific to genre_ -- similar to another TM discussed here in this thread.
> 
> Should someone be forced to change their pen name if they happen to write in the same genre as a big name writer who has TMed their own name?
> 
> I mean, on the outside, it's no big deal. What's in a name? Pen names are relatively easy to create. But some genres are herkin' massive.
> 
> Can, meet worms.


IANAL, but according to PG, there's a thing known as prior use. And if someone has published already with their legal name, I would think that they could continue business as usual. What would someone else do--make an author change their real, legal name? That would be theft and fraud, and I could see a massive liability on the part of the person trying to TM an existing author name to steal their audience. Edit: the same thing could be said of pseudonyms. Also, authors want to be unique from one another and recognized for their body of work--it best suites a writer to use a name that hasn't been used before.


----------



## jb1111

horse_girl said:


> IANAL, but according to PG, there's a thing known as prior use. And if someone has published already with their legal name, I would think that they could continue business as usual. What would someone else do--make an author change their real, legal name? That would be theft and fraud, and I could see a massive liability on the part of the person trying to TM an existing author name to steal their audience. Edit: the same thing could be said of pseudonyms. Also, authors want to be unique from one another and recognized for their body of work--it best suites a writer to use a name that hasn't been used before.


OK, but since some genres -- like romance, where this urge to TM seems so presently rampant -- are so huge, what if a new writer publishes after the other name is TMed, and they aren't aware of the TMed name?

After all, a lot of new authors aren't necessarly up on legalities and the other fun things of independent marketing. They're just happy to get a book for sale. So their book sells a handful of copies for a year and they're under the radar for a while, and then when and if they arrive on the TMed author's radar the dirt hits the fan.

I can see where anyone using a new pen name from here on out is going to be forced to be more diligent than they needed to be just two years ago.

I was diligent to find a pen name that was unique. I'm certain no one else uses it. But what if? Using Google, Bing, and Amazon searches is one thing, but this new, fun kind of marketing tactic has caused new authors to have to resort to TM searches also.


----------



## horse_girl

IANAL, so I can't say what would happen, but one would assume a real name takes precedence over a trademark. However, in pen names, one would have to be careful. A smart person would search online for the name they want to use before publishing under that name so that they use something unique. If worst comes to worst, people start searching the USPTO to be sure it isn't trademarked already. If one publishes under a name that is later TM'd, there would be reason to challenge it under the prior use, as I understand. But why would someone want to waste their money to TM a name that has already been used with the likelihood that their TM would be declined? I suppose people can be pricks, but really, it's like what we've seen with this cockygate issue, and this will establish just how these TMs can hold up or not.

Let's not assume anything but keep our heads and see what comes of this before panicking.


----------



## AltMe

Fussy Librarian's newsletter had more to say today.

The company going for 'Rebellion' TM is backing away from books. An overzealous lawyer went for everything, and and when the co-founder found out, he's inserted some reality into things, since he never meant for book titles to be included. 

Some good news anyway.


----------



## jb1111

horse_girl said:


> IANAL, so I can't say what would happen, but one would assume a real name takes precedence over a trademark.
> -snip-
> 
> Let's not assume anything but keep our heads and see what comes of this before panicking.


I'm not a lawyer, either, but if one actually uses their real name, and writes a book in the genre where that author name has already been TMed, I would think that they would still be out a certain amount of money defending it in court, even if they won.

One analog to this situation would be the music industry. I know there are TM's in that industry, but I haven't seen or heard of any individuals TM'ing their own artist name and managing to keep others from using their own real name in the trade. Maybe it has happened and I just haven't heard of it. So this TMing your name thing in publishing is a new thing to me.

Like you said, it will be interesting to see how this turns out.


----------



## DarkScribe

EB said:


> It appears that an author has trademarked the mark "cocky" for "A series of books in the field of romance" and "A series of downloadable e-books in the field of romance."
> 
> Multiple authors are reporting that they have had their books reported to Audible & Amazon over having the word "cocky" in a book title. (Search social media for cocky + trademark). Other authors state they have received emails from the owner of the TM threatening legal action if they do not change the title of their book. Some authors have complied and changed the title of their book; some are not complying and are considering other recourse. The authors being targeted seem to be indie authors, both those who used the word "cocky" in their title before the TM was registered and after.
> 
> What are your thoughts on this and what do you think the implications of this will be for the author community?
> 
> _Edited to added "MERGED" to thread title. - Becca_


Hmmm. You CANNOT Trade-Mark a word that has established common usage and a dictionary definition. You can protect a phrase or title that uses a word, but not the word itself. I could use the word Cocky in any book title I wish and nothing could be done about it.

_Edited. - Becca_


----------



## AltMe

DarkScribe said:


> Hmmm. You CANNOT Trade-Mark a word that has established common usage and a dictionary definition. You can protect a phrase or title that uses a word, but not the word itself. I could use the word Cocky in any book title I wish and nothing could be done about it.
> 
> _Edited. - Becca_


Especially 'cocky'. Every cockatoo kept as a pet in Australia, and every wild bird we see, is called cocky.

I'm sure somewhere, there's an author training their cocky to say "Rack off trademark". From what I hear, it only takes a few weeks. Smart bird.


----------



## Elizabeth S.

If someone trademarks their pen name (or real name), couldn't that prevent you from using the name in a story as well? Say you have a character named Shelly Daniels and someone trademarks that. They could potentially force you to change it. 

It could make naming characters a real pain.


----------



## jb1111

"Hmmm. You CANNOT Trade-Mark a word that has established common usage and a dictionary definition. You can protect a phrase or title that uses a word, but not the word itself. I could use the word Cocky in any book title I wish and nothing could be done about it." (tried quoting within a quote, found it difficult to do without it looking bizarre)

OK, so you can't. But the author in question _did_ actually succeed in doing that, and the USPTO documentation proves that.

So how did that happen? Do the USPTO people not know their own criteria?

Very odd.

Not arguing with your premise. My Intellectual Property textbook says generic words and 'generic terms' can not be TMed, unless it can be shown they have a "secondary meaning" (like Apple -- they don't sell apples, Apple is the name of a computer device company). So it would agree with you.

So, does 'Cocky' in this context have a secondary meaning? To me it wouldn't, as it's merely an adjective, and the books in question seem to use the word in that context. But the author in question is using the word as a brand, which is prominent all over a series of books, and the documents specify it's for "A series of books in the field of romance" only.

I suppose some court will decide this matter. Or, perhaps the legal action taken to dispute the TM will have results.

Then we will all know just what the limits are.

_Edited quoted material. - Becca_


----------



## jb1111

Elizabeth S. said:


> If someone trademarks their pen name (or real name), couldn't that prevent you from using the name in a story as well? Say you have a character named Shelly Daniels and someone trademarks that. They could potentially force you to change it.
> 
> It could make naming characters a real pain.


One would hope that the disclaimer we all put at the beginnings of our books would prevent legal action.


----------



## Used To Be BH

I'm just speculating, but I think it might be hard to apply a trademark for an author name to ban characters of the same name.

There are a few instances of trademarked character names. If I'm not mistaken, J.K. Rowling trademarked the names of all of her major characters. Note that that trademark was not used to prevent wizard rock groups like Harry and the Potters from using the name, though perhaps it could have been (unless they licensed the name). Nor was it used retroactively. (The main character in the movie _Troll_ is Harry Potter, Jr.)

It seems to me the problem is that the U.S. Trademark Office is not doing its due diligence before approving new marks. Expecting other people to pay to clean up the mess in court is not OK.


----------



## DarkScribe

jb1111 said:


> "Hmmm. You CANNOT Trade-Mark a word that has established common usage and a dictionary definition. You can protect a phrase or title that uses a word, but not the word itself. I could use the word Cocky in any book title I wish and nothing could be done about it." (tried quoting within a quote, found it difficult to do without it looking bizarre)
> 
> OK, so you can't. But the author in question _did_ actually succeed in doing that, and the USPTO documentation proves that.
> 
> So how did that happen? Do the USPTO people not know their own criteria?
> 
> Very odd.
> 
> Not arguing with your premise. My Intellectual Property textbook says generic words and 'generic terms' can not be TMed, unless it can be shown they have a "secondary meaning" (like Apple -- they don't sell apples, Apple is the name of a computer device company). So it would agree with you.
> 
> So, does 'Cocky' in this context have a secondary meaning? To me it wouldn't, as it's merely an adjective, and the books in question seem to use the word in that context. But the author in question is using the word as a brand, which is prominent all over a series of books, and the documents specify it's for "A series of books in the field of romance" only.
> 
> I suppose some court will decide this matter. Or, perhaps the legal action taken to dispute the TM will have results.
> 
> Then we will all know just what the limits are.


I imagine that they trademarked the particular usage, not the word. You could not trademark the name Harry Potter - many people have that name, but you could limit another writer using Harry Potter in a story about boy wizards. Yes, Cocky has a number of meanings - one is as a noun as any Australian will know.

_Edited quote within quote. - Becca_


----------



## jb1111

DarkScribe said:


> I imagine that they trademarked the particular usage, not the word. You could not trademark the name Harry Potter - many people have that name, but you could limit another writer using Harry Potter in a story about boy wizards. Yes, Cocky has a number of meanings - one is as a noun as any Australian will know.


If you look at the trademark documents, it appears the word itself is trademarked, when used in romance books.

So yes, you are right. So long as you use the word in sci-fi or books about cockatiels, you are safe to publish in the US. 

The issue is that the field is so huge and the word is so generic (Harry Potter, after all, consists of two separate words, and the name is fictional, and the two words could be considered as a phrase) that a lot of writers are alarmed about it. It would be like me copyrighting the word "Hot" in a series of erotica novels. I suppose it could be done.

If this trend continues, perhaps it will happen. I ain't gonna do it, though.


----------



## Becca Mills

Interesting interview with Kevin Kneupper, who says he'll be filing a letter of protest on the "rebellion" application, as well as pursuing the petition to cancel the "cocky" mark:


----------



## Jan Hurst-Nicholson

I'm wondering if all this publicity is actually increasing her sales


----------



## AltMe

Jan Hurst-Nicholson said:


> I'm wondering if all this publicity is actually increasing her sales


From what I've heard, no. Rumour has it her books are getting 1 starred, and all the books she is threatening are getting read instead.
It is rumour though. Has anyone been running her books through the rank checking sites? Would be interesting to know.


----------



## katrina46

Jan Hurst-Nicholson said:


> I'm wondering if all this publicity is actually increasing her sales


Not in the least that I can tell. I was curious about it so I tracked her rank and sales.


----------



## katrina46

TimothyEllis said:


> From what I've heard, no. Rumour has it her books are getting 1 starred, and all the books she is threatening are getting read instead.
> It is rumour though. Has anyone been running her books through the rank checking sites? Would be interesting to know.


I have. She never went up and now she's slipping, but she also hasn't had a new release since all this started, so I can't say this hurt her. I can say it doesn't seem to have helped her at all.


----------



## Becca Mills

Hopkins seems to have been careful not to make any new news these last few days. Until/unless that changes in some significant way, let's not chew her over any further.

FYI,

__ https://twitter.com/i/web/status/995234042256617473 functionality has been enhanced:



> My future posts will differentiate between notifications of publication for opposition (which starts the 30-day window for formal opposition) and notifications of initial filing, after which informal letters of protest can be filed.


The flagging of initial filings is significant because submitting a letter of protest is quick, easy, and free. You can do it online. Takes about ten minutes.


----------



## Taking my troll a$$ outta here

Becca Mills said:


> FYI,
> 
> __ https://twitter.com/i/web/status/995234042256617473 functionality has been enhanced:
> 
> The flagging of initial filings is significant because submitting a letter of protest is quick, easy, and free. You can do it online. Takes about ten minutes.


This is great info. Is there a way to pin this so authors can easily find the letter of protest link & cockybot link? Looking through the twitter feed, I see quite a few that just blow my mind.
- Justified
- Embrace
- My Mommy is
- How Do I


----------



## Jena H

TimothyEllis said:


> From what I've heard, no. Rumour has it her books are getting 1 starred, and all the books she is threatening are getting read instead.
> It is rumour though. Has anyone been running her books through the rank checking sites? Would be interesting to know.


This is off-topic, but I just noticed the "stargate" on your most recent covers. At firt I thought you'd written novelizations. 
(Still miss Atlantis. Great show.)


----------



## AltMe

Jena H said:


> This is off-topic, but I just noticed the "stargate" on your most recent covers. At firt I thought you'd written novelizations.
> (Still miss Atlantis. Great show.)


No, its the mage power circle, you often see around hands on covers. But big enough to throw a ship across space. Maybe I should TM that.


----------



## jb1111

jackiejohnes said:


> I 100% agree with this post, one can't patent a particular word or group of words, that's hilarious. Apple is a common word, until someone's claiming his product was made under it's name, under the name of the precise company situated in Cupertino. I think consulting a trade mark attorney would be the best option, I would even say 2-3 attorneys. What personally upsets me is that I understand that it will cost you big money, even when you're 99% right, it is just a real headache and additional troubles. I always try to check everything I wrote with a plagiarism checker, but didn't expect a trouble coming from this side lol.
> 
> _Link deleted. Drop me a PM if you have any questions. - Becca_


The problem, of course, is that you actually CAN trademark such words and phrases. The fact that some of them have become TMed is proof of that.

What makes Apple a TM is that the word isn't used generically for actual apples.... The whole idea of a TM is fraught with these issues, which our TM office is supposed to prevent through their processes... Oh well. 

You are right about the legal costs involved in these things. Hopefully, if Mr. Kneupper can succeed in his attempt to reverse one or two of these, it will quell the rush to TM every word in Webster's Dictionary and every two or three word phrase used in the English language.


----------



## Becca Mills

Looks like a writer and/or publisher has applied for a trademark on the word *"forever."* As with "cocky," the mark is for "standard characters without claim to any particular font style, size, or color."

Serial No.: 87927993

Goods covered are "Audio books in the nature of novels; Downloadable fiction e-books on a variety of topics; Fiction e-books on a variety of topics recorded on computer media"; "Fiction books on a variety of topics."

Date of first use is listed as *December 1, 2012*.

Filer is *Wicked Literary, LLC*, of Wilmington, Delaware (full address available in the trademark application)

Attorney is Marisa Corvisiero of New York, New York (full address, email, and phone number available in the trademark application)

Status: The site lists the status as "LIVE/APPLICATION/Awaiting Examination" and says, "The trademark application has been accepted by the Office (has met the minimum filing requirements) and has not yet been assigned to an examiner. ... New application will be assigned to an examining attorney approximately 3 months after filing date." The "Status Date" is given as May 22, 2018, but I'm not sure that's the same as the filing date.

To find the application for "forever," go to http://tmsearch.uspto.gov, choose "Basic Word Mark Search," and enter "forever." If there's more than one listing for that mark, cross-check the serial number to find the right application.

I haven't finished reading up on this situation, so there may be more to it than what I've said (all of the above is drawn from public records), but wanted to add it to this thread, so we can keep track of this ... groundswell?


----------



## Becca Mills

FYI, the form for filing a letter of protest, which is a free action: https://teas.uspto.gov/ccr/lop

And Kevin Kneupper's tweetstorm guide on how to file one: https://twitter.com/kneupperwriter/status/999014876612739072


----------



## Rick Gualtieri

Becca Mills said:


> FYI, the form for filing a letter of protest, which is a free action: https://teas.uspto.gov/ccr/lop
> 
> And Kevin Kneupper's tweetstorm guide on how to file one: https://twitter.com/kneupperwriter/status/999014876612739072


She's since backed down. Claiming on FB that it was all a miscommunication between her and her agent, and that the TM application will be withdrawn.


----------



## Becca Mills

Rick Gualtieri said:


> She's since backed down. Claiming on FB that it was all a miscommunication between her and her agent, and that the TM application will be withdrawn.


          

Edit: The smilies were unevenly spaced. Not acceptable.


----------



## Becca Mills

Mark Gardner said:


> Since Faleena Hopkins has said in her deleted 90-minute rant that she's autistic, maybe the lawyer is to blame. Filing cease-and-desist orders s/he knows are unenforceable, but continuing to charge Faleena for legal services?


Let's not hypothesize in this direction, Mark. I watched the entire video and do not recall Hopkins saying she has autism. Whether she does or not, let's stick with the assumption that she's the legally competent person she appears to be and is not being defrauded by her attorney.


----------



## Cactus Lady

Mark Gardner said:


> maybe the lawyer is to blame. Filing cease-and-desist orders s/he knows are unenforceable, but continuing to charge Faleena for legal services?


(wife of lawyer here) Any attorney would have to be nuts to do that, especially in something that's at all in the public eye. That's like waving your arms with a giant neon sign on your head and shouting, "Hey, Bar Association! Disbar me!" Not to say it couldn't happen, but the lawyer would have to be completely off their rocker. Besides, from what I saw of the letters that were being sent out, no lawyer came within miles of those things.


----------



## KSRuff

Apparently, someone attempted to trademark the word "forever." Can't even begin to imagine how many authors that would have impacted across several genres. RWA consulted with some attorneys, apparently suspended the agent from RWA, and now, quite thankfully, the author and agent claim the trademark filing is being withdrawn. RWA has several tweets covering this, for anyone interested. I'm relieved the matter was resolved quickly.


----------



## Amanda M. Lee

She already backed down and is canceling the trademark.


----------



## ImaWriter

Just an FYI to all. I'm going to TM the word "Author." 

"Anyone know any good authors?"
"Wadaya mean? Haven't you heard? There's only ONE AUTHOR!"  

I expect my sales to go through the roof. Sucks to be you all.


----------



## Becca Mills

Going to merge this into our existing cockygate thread ...


----------



## Rose Andrews

I'm also glad this was resolved quickly but are you kidding? Why are authors even attempting this? Sigh.


----------



## Becca Mills

Placing some notes here, after reading Kevin Kneupper's tweetstorm about letters of protest:

A letter of protest consists of a brief factual letter, an index of evidence, and the evidence itself. You should compile this before you go to the USPTO website to begin submitting.

When you file a letter of protest, you have to check off the legal reason (

__ https://twitter.com/i/web/status/999024128593035264, it's too late to submit a letter of protest. Letters of protest should be submitted as quickly as possible after @cockybot flags the application.

Edit: Had typed "filed" where I should've typed "published." Now fixed.


----------



## Rick Gualtieri

Becca Mills said:


> The evidence you submit should be concrete, factual material, Kevin
> 
> __ https://twitter.com/i/web/status/999020170344513537. His suggestions:
> - screenshots of websites where the term is in already use descriptively;
> - dictionary definitions;
> - Wikipedia entries;
> - results of Goodreads searches on the term;
> - Google results for the term.


I'll just point out, one nice thing about Goodreads searches is it shows publication date in the search listings. So it makes finding prior art fairly easy.


----------



## Becca Mills

Rick Gualtieri said:


> I'll just point out, one nice thing about Goodreads searches is it shows publication date in the search listings. So it makes finding prior art fairly easy.


Nice. I didn't know that.

I'm not sure the evidence all has to be prior. My understanding of what Kevin wrote is that the descriptiveness objection =/= the first-to-use objection Passive Guy discussed. Rather, you're just showing that the word is commonly used in books and series titles because it describes the books' contents.

I could be misunderstanding this, though.

Sent from my SM-G930V using Tapatalk


----------



## Rick Gualtieri

Becca Mills said:


> Nice. I didn't know that.
> 
> I'm not sure the evidence all has to be prior. My understanding of what Kevin wrote is that the descriptiveness objection =/= the first-to-use objection Passive Guy discussed. Rather, you're just showing that the word is commonly used in books and series titles because it describes the books' contents.
> 
> I could be misunderstanding this, though.


Even if not, I can't imagine that establishing prior art hurts the challenge in any way.


----------



## AltMe

Jeff Tanyard said:


> I suspect Joe Haldeman might have something to say about that.
> 
> (Many other authors, too; this was just the first book that came to mind.)


Modesitt Jr.'s 'Forever Hero' goes back to 2007.


----------



## MichFisher

Becca Mills said:


> Looks like a writer and/or publisher has applied for a trademark on the word *"forever."* As with "cocky," the mark is for "standard characters without claim to any particular font style, size, or color."
> 
> Goods covered are "Audio books in the nature of novels; Downloadable fiction e-books on a variety of topics; Fiction e-books on a variety of topics recorded on computer media"; "Fiction books on a variety of topics."
> 
> Date of first use is listed as *December 1, 2012*.


I'd imagine Judy Blume will have a thing or three to say about that. 
*rolls eyes *forever**


----------



## Becca Mills

Puddleduck said:


> I'm not sure "descriptive" really fully captures the problem. The problem is that people shouldn't be able to copyright single English words or common phrases as related to _books_--which, by definition, are chock full of all sorts of words. It's one thing to trademark "Harry Potter" as relates to books. But just "Harry" or just "Potter"? No. Even "Twilight" shouldn't be trademarkable, even though it's a popular book franchise (if they'd wanted it trademarkable, they should have made it more unique). Writers work in words. They are our livelihood. The problem with trademarking any single words or common combinations of words in the context of _books _isn't something anyone should have to explain to the trademark office. It would be like allowing a science company to trademark the number 4 or "1 + 1 = 2".


I totally agree. Couldn't agree more.

At the same time ... the form has just a few little boxes. The letter of protest is not the place to make any sort of nuanced argument, apparently. They're looking for straightforward factual evidence that fits one of their categories. It has to be appropriate for _ex parte_ consideration, meaning (I think) something that can be decided upon without hearing from both sides. I.e., objective, non-arguable stuff.

As I recall, there is an "other" box, and maybe you could put something like the above in there. But it's probably a good idea to *also* give them the kind of objection they're set up to accept. The workings of bureaucracies, etc.


----------



## Becca Mills

Puddleduck said:


> Is there any place on the form for comments or explanation, other than the 'other' box?


There is a box where you're supposed to state what evidence you're submitting, but that doesn't seem like a good spot for argumentation.

According to Kevin K.'s instructions, you are supposed to submit an actual letter as part of your package. You submit a single PDF that includes your letter, an index of evidence, and the evidence itself. But I get the sense including a lengthy chunk of reasoning might be counterproductive.


----------



## unkownwriter

At least I've got the title for my next book:  Twilight of the Forever Cocky LitRPG. It's got a pretty interesting story, which I am the first person ever to write about. I've already got the cease and desist letters ready to go for my newly trademarked "zombie", too. So watch out, people. I'm -- I mean, my lawyer -- is coming for you. Even you, George Romero. *prepares document for exhumation*


----------



## unkownwriter

M R Mortimer said:


> Well I plan to write "The Cocky Cocky's Cocky is Cocky" which is a story about the adventures of an overly confident cockatoo which is the pet of an arrogant Australian farmer. Obviously it is a tale of transformative experience leading the cocky to change its ways and become less cocky after the cocky cocky has to come and rescue the cocky cocky from a trap in the bush.


I'd read that.


----------



## Lauren P.

M R Mortimer said:


> Well I plan to write "The Cocky Cocky's Cocky is Cocky" which is a story about the adventures of an overly confident cockatoo which is the pet of an arrogant Australian farmer. Obviously it is a tale of transformative experience leading the cocky to change its ways and become less cocky after the cocky cocky has to come and rescue the cocky cocky from a trap in the bush.


 Classic!


----------



## Taking my troll a$$ outta here

Becca Mills said:


> Placing some notes here, after reading Kevin Kneupper's tweetstorm about letters of protest:
> 
> A letter of protest consists of a brief factual letter, an index of evidence, and the evidence itself. You should compile this before you go to the USPTO website to begin submitting.
> 
> When you file a letter of protest, you have to check off the legal reason (
> 
> __ https://twitter.com/i/web/status/999024128593035264, it's too late to submit a letter of protest. Letters of protest should be submitted as quickly as possible after @cockybot flags the application.


Excellent info, thank you for compiling that.



she-la-ti-da said:


> At least I've got the title for my next book: Twilight of the Forever Cocky LitRPG. It's got a pretty interesting story, which I am the first person ever to write about. I've already got the cease and desist letters ready to go for my newly trademarked "zombie", too. So watch out, people. I'm -- I mean, my lawyer -- is coming for you. Even you, George Romero. *prepares document for exhumation*


You stole my title idea! Damn you, I guess I'll have to name my next book The Forever Cocky Time Walker.


----------



## The Fussy Librarian

Kevin Kneupper received an email from a lawyer representing Hopkins this afternoon, saying he was going to file for a temporary restraining order in federal court. Tara Crescent and Jennifer Watson are also named in the lawsuit.

Here's the link to a draft of the TRO filing:

https://www.dropbox.com/s/9l4432w30nwu47u/OSC%20w%20TRO%20-%20Final%20-%20With%20Redactions.docx?dl=0

I don't have access to PACER, so I can't verified that it has been actually filed.

Jeffrey


----------



## Becca Mills

The Fussy Librarian said:


> Kevin Kneupper received an email from a lawyer representing Hopkins this afternoon, saying he was going to file for a temporary restraining order in federal court. Tara Crescent and Jennifer Watson are also named in the lawsuit.
> 
> Here's the link to a draft of the TRO filing:
> 
> https://www.dropbox.com/s/9l4432w30nwu47u/OSC%20w%20TRO%20-%20Final%20-%20With%20Redactions.docx?dl=0
> 
> I don't have access to PACER, so I can't verified that it has been actually filed.
> 
> Jeffrey


That's ... sort of hard for me to follow. Sort of wishing I'd gone to law school.


----------



## 91831

See's that Sam (the font designer that created the font that Faleena used supposedly against the T&C's of the license) has posted this.

https://setsailstudios.com/new/wp-content/uploads/2018/05/cockygatestatement.jpg

I'm sad to hear that he won't be able to pursue it


----------



## Becca Mills

evdarcy said:


> See's that Sam (the font designer that created the font that Faleena used supposedly against the T&C's of the license) has posted this.
> 
> https://setsailstudios.com/new/wp-content/uploads/2018/05/cockygatestatement.jpg
> 
> I'm sad to hear that he won't be able to pursue it


In case that statement doesn't remain available permanently at that link, the essence is that Sam Parrett cannot commit the necessary funds or time to defending the terms of his font's license. He also hasn't been able to ascertain exactly which outlet Hopkins bought his font through, and therefore the specific license she acquired.


----------



## 75814

So she's violating the font license and the only reason she can get away with it is because the font designer isn't capable of defending his work. That's just sickening. She's exploiting this guy.


----------



## unkownwriter

EB said:


> You stole my title idea! Damn you, I guess I'll have to name my next book The Forever Cocky Time Walker.


Well, it seems the first to file legal notice is the winner. Sorry about that.  But seriously...

That restraining order is the most ridiculous thing I've heard yet. The man has a right to pursue legal action if he wants to. That woman has some nerve. Maybe a friendly lawyer will step in and help the guy out.


----------



## MyCatDoesNotConsent

√
vЯ не согласен с новым TOS


----------



## Rose Andrews

Perry Constantine said:


> So she's violating the font license and the only reason she can get away with it is because the font designer isn't capable of defending his work. That's just sickening. She's exploiting this guy.


It just gets worse and worse. The lack of respect for other creators is appalling.

So the question is then, because the font isn't technically writing it isn't protected under copyright? I'm really confused as to why he even needs to defend it in the first place.


----------



## 75814

License abuse is unfortunately all too common in the font world and the designers often don't have the time or resources to seek justice.

_Edited. Drop me a PM if you have any questions. - Becca_


----------



## Rose Andrews

RPatton said:


> Fonts are treated differently. A typeface cannot be copyrighted, which means the glyphs and letter shapes. The font (a computer file) can be. A Typeface can get a design patent though. A font name can be trademarked. URW and Monotype went to court about this. URW basically copped the Montotype typefaces and then named them somewhat similarly to Monotype's fonts. The court said URW could continue to distribute the fonts, but they had to change the names because they had deliberately named them to be similar enough to Monotype that a reasonable adult would be confused.
> 
> Then there is licensing, which is where Set Sail Studios is at. However it only licenses the font file and not the letter shapes. In other words, you can copy a font's letter shapes, give it a different name and use it as you see fit because the font file is different. Unless someone has design patent as well, the letter shapes can be duplicated.
> 
> In this specific case, Set Sail Studios would have to sue for the abuse of the license. What it all comes down to though is whether the code of the font file is identical (assuming there isn't a design patent).


Thanks for explaining that. It's...pretty detailed and confusing to the layperson. So no wonder he says that he doesn't have the resources to fight it. What bologna. SMH


----------



## Tulonsae

Content removed due to TOS Change of 2018. I do not agree to the terms.


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## Becca Mills

Tulonsae said:


> I think I got confused when threads were merged. So, it's the person who filed for "Forever" that backed down, not the person who filed "Cocky"?


Tulonsae, unlike with "forever," the trademark for "cocky" is not in the application stage; it's already been granted.

To all ... I know there's a great deal of anger over this situation, but please remember in posting here that piling on and personal remarks are two things we work to avoid. Such material has been and will be deleted. Please hew to the facts of today's new legal development and its impact on the authoring/publishing community, to the larger implications of trademarking, and to other efforts to trademark ordinary dictionary terms. (For instance, @cockybot has tossed up an application for "shifter world," and I've seen some debate surrounding that.) We all need to understand what's going on and find the best path forward.


----------



## jb1111

Puddleduck said:


> A restraining order against someone for challenging a trademark and bringing attention to it? I really hope the courts aren't idiotic enough to grant that.


The document looks like a proposed order, with at least three requests.

It requests an "automatic stay" on Mr. Kneupper's action, which is separate from the TRO. It also requests that the judge dismiss Mr. Kneupper's action (his petition to USPTO to oppose the Hopkins TM).

The TRO seems to apply to the other authors' alleged infringements of the "cocky" TM only.

How this all plays out I really don't know. I would think the USPTO has its own procedures which would have to be gone through before something gets to court, but I really don't understand this part of Federal procedure. I suppose a court could deny Kneupper's petition before the USPTO. But I'm just making a guess here.


----------



## Doglover

I haven't read all of this massive thread, so forgive me if this has been mentioned. Number 1 bestseller in Paranormal is entitled The Cock Tales with a further title of The Cocky Collective. It is published today and it is not by Faleena Hopkins. I have to wonder if the author is deliberately trying to test the waters or simply wind her up and see how far she runs.

There is a rather brilliant 'letter to Faleena Hopkins' on Cassie Sharp's blog as well. 

This whole thing is better than a comedy film, or would be were it not for the cost and inconvenience to other authors.


----------



## Lydniz

Doglover said:


> I haven't read all of this massive thread, so forgive me if this has been mentioned. Number 1 bestseller in Paranormal is entitled The Cock Tales with a further title of The Cocky Collective. It is published today and it is not by Faleena Hopkins. I have to wonder if the author is deliberately trying to test the waters or simply wind her up and see how far she runs.


Cock Tales was published by a number of indie authors and the funds raised are going (I think) towards legal fees to fight the cocky trademark case. The title is quite deliberate.


----------



## Doglover

Lydniz™ said:


> Cock Tales was published by a number of indie authors and the funds raised are going (I think) towards legal fees to fight the cocky trademark case. The title is quite deliberate.


I thought it sounded like it. Thanks for clarifying; I never know what's going on in the world, so I pop my head out of the sand very occasionally to find that I'm way behind the times. Now I'll pop my head back in till next time.


----------



## Shelley K

I wish the font designer would start a kickstarter or similar fundraising effort for his legal fees. Because it's a worthy cause, if ever, and I think most artists recognize that.


----------



## KSRuff

Lydniz™ said:


> Cock Tales was published by a number of indie authors and the funds raised are going (I think) towards legal fees to fight the cocky trademark case. The title is quite deliberate.


Yes, it is a limited release (May 26 to August 26) with original, never before published material from several authors who are trying to raise money for those authors who have been impacted by the trademark of common, single words and to establish an advocacy fund through RWA to fight against the obstruction of creative expression. Search for "Cocktales" all one word, though, not "Cock Tales." Here is the URL for anyone wishing to support the cause: http://a.co/8VXuk5r


----------



## jb1111

I wonder if enough people publish such 'cocky tales' books, if the costs of litigation would suppress the original author's urge to engage in it. I mean, you can sue one or two people, and maybe win, and get your costs back. But suing 50 or 100 of them? Those motions and filing fees can add up. Protecting your brand is one thing: spending a lot of profit in court or attorney's retainer fees is another. Not urging people to engage in this, mind you (really), just an observation.


----------



## My_Txxxx_a$$_Left_Too

Content removed due to TOS Change of 2018. I do not agree to the terms.


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## PhoenixS

*************


----------



## cvwriter

I don't believe Tara ever received a cease and desist. Faleena just asked Amazon to take her books down because she holds the Cocky trademark, and Amazon brieflh complied. Can she skip that step and still file a suit with any merit?


----------



## jb1111

PhoenixS said:


> Looking at the proposed TRO, I have a couple of laymen observations.
> 
> It appears to me the word trademark for Cocky is granted for a series of romance novels, which jives with my understanding that only series names can be TM'd. The TRO claims Crescent is using a similar series name and is refusing to honor the new TM rights for the Cocky series name. This is not a cease and desist request for a single title, and imo is a legitimate action based on a _series trademark_.
> 
> -snip-
> 
> What I do believe is that in previously targeting single titles with the word Cocky is that Faleena is over-reaching. The trademark grant, imo, clearly states it's for a series of romance novels. Is anyone other than Faleena reading that differently? I also believe that since the trademarks are only for the ebook versions, that even though she herself is using the marks on print and audio, that those media don't come under the TM grant.
> 
> In their limited use ('the Cocky series' for a romance series only, and the stylistic representation of the word on individual novels), I actually think the TMs are valid.


It looks like the TM is for the word Cocky, as used in "a series of books in the field of romance", as you mention. Except it doesn't preclude print. There are two 'identifications' in the document. I think the second'identification' ("A series of downloadable e-books in the field of romance") describes where the samples were from, but I could be wrong.

I would love to see the motion, complaint, and affidavits. In the TRO document linked here, the word "Trademarks" is used in the plural, so maybe there are other TM's that Hopkins got approved?


----------



## MyraScott

EB said:


> Excellent info, thank you for compiling that.
> You stole my title idea! Damn you, I guess I'll have to name my next book The Forever Cocky Time Walker.


The Forever Cocky Time Walker (A LitRPG Novel)


----------



## Sati_LRR

Are you a science fiction author?

https://twitter.com/cockybot/status/1000297275212546048

Mark: "QUANTUM SERIES"
Owner: HTJB, Inc. (https://jackshousepublishing.com/about)
Status: https://tsdr.uspto.gov/#caseNumber=87763989&caseType=SERIAL_NO&searchType=statusSearch
Documents: https://tsdr.uspto.gov/documentviewer?caseId=sn87763989#docIndex=0&page=1
For: Series of downloadable fiction books; audio books in the nature of novels 
For: Series of fiction books

Authors potentially affected: Chris Reher, C.A. Fraser, Mike O. Carroll, Douglas Phillips.


----------



## RedFoxUF

Please, someone, explain to me...what is the point of this?

Most of these authors are not big fish (even if they are bestsellers, they are light years away from being a big brand).

What is the financial benefit? Do you make more money with a TM? How do you profit? Just by abusing other authors and shutting them out


----------



## PhoenixS

*************


----------



## inconsequential

RedFoxUF said:


> Please, someone, explain to me...what is the point of this?
> 
> Most of these authors are not big fish (even if they are bestsellers, they are light years away from being a big brand).
> 
> What is the financial benefit? Do you make more money with a TM? How do you profit? Just by abusing other authors and shutting them out


My guess for why this was done is: removing competition and power-play.


----------



## PhoenixS

*************


----------



## Doglover

RedFoxUF said:


> Please, someone, explain to me...what is the point of this?
> 
> Most of these authors are not big fish (even if they are bestsellers, they are light years away from being a big brand).
> 
> What is the financial benefit? Do you make more money with a TM? How do you profit? Just by abusing other authors and shutting them out


As far as I can gather, she saw the word in other authors' titles and thought they were trying to copy her.


----------



## Sati_LRR

PhoenixS said:


> I know Chris' book, and it's a single title name, not a series name. The name of the book is Quantum Tangle, and the TM is for "Quantum Series". Pretty sure all the Quantum Leap books based on the TV series won't be affected either, since the TM is specific to the entire phrase, not individual words in it. Chris should be fine.


Quantum Space (Quantum Series #1) by Douglas Phillips 
https://www.goodreads.com/book/show/36216959-quantum-space?from_search=true

The trademark is not unique and is overreaching, it should be protested or withdrawn ASAP.


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## PhoenixS

*************


----------



## Becca Mills

I've just deleted a number of posts. To reiterate: we won't be contributing further to the pile-on, and we won't be levying personal insults. This situation raises a number of issues we need to understand clearly, analyze, and respond to strategically as authors/publishers. Faleena Hopkins's personal traits are not among those issues. Those of you who just lost posts, further such will lead to your exclusion from the thread.


----------



## KSRuff

PhoenixS said:


> Looking at the proposed TRO, I have a couple of laymen observations.
> 
> The TRO says the Cocktales antho uses the TM'd stylistic mark. NOT going into whether the font creator can or will deny that Faleena has the right to TM the graphic mark using his font and assuming he doesn't challenge and the stylistic mark remains TM'd, then the cease and desist for using that same mark (not simply the word mark) is also, imo, legit. Although whether she's targeting the right person in charge of the antho might be debatable. And since the cover on the pubbed version does NOT use the stylistic mark, I think this whole argument is moot. Was there another cover, pre-pub, with the stylistic mark?
> 
> What I do believe is that in previously targeting single titles with the word Cocky is that Faleena is over-reaching. The trademark grant, imo, clearly states it's for a series of romance novels. Is anyone other than Faleena reading that differently? I also believe that since the trademarks are only for the ebook versions, that even though she herself is using the marks on print and audio, that those media don't come under the TM grant.
> 
> In their limited use ('the Cocky series' for a romance series only, and the stylistic representation of the word on individual novels), I actually think the TMs are valid. But I also think the granted trademark is not for the single word 'cocky' in general. Again, _the C&Ds for single-title use where there's no confusion with her TM'd stylistic mark_, imo, was a total over-reach on Faleena's part. I don't actually believe the trademark office granted a blanket TM on the word. But IANAL, let alone an IP lawyer.


Check out the book Cocktales. The authors didn't use "Cocky" in the same stylized font noted in the complaint or the trademark application, which Kevin Kneupper has linked in this Twitter feed. One of many signs she is over-reaching.

I highly recommend folks start following @CockyBot and/or searching the U.S. Patent and Trademark office on a daily and filing letters of protest. This "cockygate" fiasco has opened a pandora's box of trademark applications for common phrases and words, some in titles some in series that could impact many of us. "Shifter World" "Outbreak" "Livewire" "Quantum Series" "Current" and "Dare" ( this last one by Harlequin Enterprises if you can believe it) are just a few of the more common words and phrases filed in the last twenty four hours. We are all at risk of having someone attempt to trademark a common word from our books or series titles. I can only hope the U.S. Patent and Trademark office will recognize the crippling effect it could have on our industry and put an end to this. Until then, I'm purchasing Cocktales and contributing to the advocacy fund at RWA.


----------



## Rose Andrews

Lynn Is A Pseudonym said:


> I also believe it's just plain ignorance. Someone hears someone else talking about filing for trademarks, thinks _hey, that sounds like something I should do_, then just goes gung ho into it without any kind of due diligence, no knowledge of standard industry practices, etc. All because the industry has been opened to everyone.
> 
> If nothing else, publishers at least had some experience and knowledge that stopped them from doing ignorant things like overreach. Court is the inevitable battleground for the ignorant.
> 
> Most people don't realize just how expensive it is for both parties until it's too late. And once invested, it's pretty common for people to refuse to back down. The sunk cost fallacy at play. https://youarenotsosmart.com/2011/03/25/the-sunk-cost-fallacy/ Emotional investment is hard to discount.
> 
> Of course, I wouldn't hope to go back to the way things were, but it is kind of depressing to know that this is going to keep happening because there are just so many people getting into publishing that have no clue how to be a publisher.
> 
> PS. Using "ignorant" in the lack-of-knowledge sense, not as an insult.  Just wanted to make that clear!


Absolutely. I could not agree with this more. We're all learning as we go...but taking the time to study the legalities of something this big would have saved this from happening. I think it's safe to say we're all interested in seeing where this will go because a win in the trademark's favor could be devastating to our industry. Maybe this will end up causing a change at the trademark office but I highly doubt it. Another thing that bothers me is that the trademark word in question wasn't used as part of the author's series title until after the trademark was filed. I'm curious to see how that part upholds, tbh.


_edited, PM if you have questions -- Ann_


----------



## Elizabeth S.

A lot of romance authors started trademarking pen names after the Alexa Riley issue. 

I've also noticed many people with internet marketing backgrounds lean toward trademarking things. 

It seems so unnecessary to me--just adding extra work and problems for everyone else, rather than truly protecting your own IP.


----------



## Tulonsae

Content removed due to TOS Change of 2018. I do not agree to the terms.


----------



## KSRuff

If the previous posts weren't concerning enough, a graphic capturing the number of trademark applications filed on fictional novels this month...










https://twitter.com/cockybot/status/998939697165385728

sorry, the image isn't copying.


----------



## Jan Hurst-Nicholson

How does this apply to writers outside the US? Could someone say, in India, use the trademarked title and upload to Amazon.in?


----------



## RedFoxUF

PhoenixS said:


> By the time they're big enough, it'd be too late.
> 
> This is, I believe, a sign of the maturation of the market and of the growing schism between the good ole gals networking and more hard-core competitive business practices. (I'm not personally defending the practice, just noting as objectively as I can.)


Too late for what though?

The odds of some of these authors becoming big enough to justify a TM are low. Being a bestseller in KU means nothing in the grand scheme of things. It's a big pond, sure, but no one becomes JK Rowling in KU.

IDK what these authors think is going to happen. The book market is poised for a big disruption, too. The status quo is going to become mutable, and TMs won't do anything for them with the coming trend of decentralized sales.

Where is the business case for TMiing a generic word? I can't find one. Is this truly spontaneous behavior?


----------



## Rick Partlow

kw3000 said:


> You know where this is going eventually, right?
> 
> Something similar to web domains where an added step in publishing your book along with purchasing a cover and editing, etc will be purchasing your book's title. Here come new businesses looking to grab hold of this opportunity. How we get there, legislatively, organizationally? No idea, but I can see it coming.


No, I really don't think it's going there at all.


----------



## Nathan Elliott

kw3000 said:


> I really hope you're right.


He is right, IMHO. I think we're probably safe because it is waaaaay more expensive and time consuming to squat on a trademark than a domain name. You'd need to pay hundreds of dollars in fees per trademark per class (probably ebooks and paperbacks at a minimum) and then actually prove that you are using the mark in commerce. So, you'd need to do something like actually produce ebooks, paperbacks, etc using the mark in the series name. (Or you can string the USPTO along by requesting extensions rather than showing you are using it, but each 6 months that it is another several hundred dollars wasted, and eventually you run out of extensions.) I think that is a lot of money to spend and a lot of work to do in the hopes that someday someone *might* try to buy the trademark from you. Maybe it might happen with an exceptionally attractive trademark (like, I dunno, if Avengers accidentally hadn't been trademarked for birthday party favors or something), but I don't think trademark squatting will become a widespread problem. Probably easier and cheaper for the prospective squatter to get an honest job instead.


----------



## C. Gockel

RPatton said:


> Set Sail Studios just sent a C&D to FH for the use of the font in a registered trademark.
> https://twitter.com/SetSailStudios/status/1000488124395479041


My heart goes out to this guy. If he doesn't respond, the TM holder could conceivably go after anyone who used his font to spell a similar word (or the same word of course.) If he doesn't protect his clients, his business could suffer in the long-term. I doubt the guy is rich, but he's probably had to hire a lawyer and they aren't cheap. I hope he considers reaching out to the RWA for support. They should want to cover his fees as their members could be hurt by this.


----------



## Desert Rose

I can't believe that part of Faleena Hopkins' filing against Kevin Kneupper includes a section with the header "Romance Novel Series Readers Do Not Exercise a High Degree of Care" and that romance books are often "impulse purchases based upon a publication's cover or title". 

Also, instead of "a word and a style which is unique and permits her novels to be easily identified as written by her", she might consider, I don't know, encouraging her readers to remember her name.


----------



## Ros_Jackson

Puddleduck said:


> It's pretty common in a republic or democracy for citizens to express their opinions to those in government, and for the government to pay attention to what they say (at least en masse). So no, I don't think that me sending one letter is going to make them change a trademark. That was never my goal. But if they start getting a bunch of citizens saying they're unhappy and rationally explaining why, someone might notice.
> 
> And I really doubt the trademark office is manned by a bunch of unthinking robots. Someone has to analyze and either approve or deny an application. It's not unreasonable to ask them to consider the way in which they do that. Nor is it unreasonable to expect them to do due diligence regarding lying on an application. If getting a trademark for something was as simple as lying on the application for it, the whole system becomes a free-for-all.
> 
> I don't know much about trademark legalities, but I do work in government, so I know that just because the root of a particular system is high up the chain, the details of how it is implemented might well be lower down and easier to adjust.
> 
> I do think this is something that the office in charge of granting trademarks should be concerned about. So I sent an email about it.


It might also be useful for American authors to write to their legislators, because it's possible this is out of the USPTO's hands to an extent due to funding. If they were allowed to charge more for filings, perhaps they could employ more people to check things?


----------



## 75814

RPatton said:


> Set Sail Studios just sent a C&D to FH for the use of the font in a registered trademark.
> https://twitter.com/SetSailStudios/status/1000488124395479041


Couldn't be happier to see this.



Dragovian said:


> I can't believe that part of Faleena Hopkins' filing against Kevin Kneupper includes a section with the header "Romance Novel Series Readers Do Not Exercise a High Degree of Care" and that romance books are often "impulse purchases based upon a publication's cover or title".
> 
> Also, instead of "a word and a style which is unique and permits her novels to be easily identified as written by her", she might consider, I don't know, encouraging her readers to remember her name.


It shows zero respect for anyone, not even readers.


----------



## Rose Andrews

C. Gockel said:


> My heart goes out to this guy. If he doesn't respond, the TM holder could conceivably go after anyone who used his font to spell a similar word (or the same word of course.) If he doesn't protect his clients, his business could suffer in the long-term. I doubt the guy is rich, but he's probably had to hire a lawyer and they aren't cheap. I hope he considers reaching out to the RWA for support. They should want to cover his fees as their members could be hurt by this.


Interesting point. Does anyone know who he is? Maybe there's a way to point him to the RWA?


----------



## unkownwriter

It's nice to think she got herself into this out of ignorance of the law, or of the consequences, but her lawyer would have known. If he didn't try his best to steer her in a direction that was in her best interests, rather than looking at all the money _he_ could make, then he should be disbarred.


----------



## jb1111

Dragovian said:


> I can't believe that part of Faleena Hopkins' filing against Kevin Kneupper includes a section with the header "Romance Novel Series Readers Do Not Exercise a High Degree of Care" and that romance books are often "impulse purchases based upon a publication's cover or title".
> 
> Also, instead of "a word and a style which is unique and permits her novels to be easily identified as written by her", she might consider, I don't know, encouraging her readers to remember her name.


Keep in mind that in legal memoranda and affidavits the wording can just be exaggerations written by the attorney to make a _legal argument._ The author may not actually have said it word for word, and chances are kinda high that the author didn't actually say any of those things that way. This is how things work in lawsuits sometimes. Attorney talks to client. Needs affidavit. Emphasises certain points to get the legal argument across.

And it's possible that those statements have a degree of truth: some of the readers probably _do_ make purchases based on the cover or title. How many times in KBoards (and other forums) are new authors told that they want a professional looking cover and snappy title that catches the eye of the reader?


----------



## 97251

Rosie A. said:


> Interesting point. Does anyone know who he is? Maybe there's a way to point him to the RWA?


Sam from Set Sail Studios is on Twitter, and has received many offers of support from authors and RWA. So I guess he'll be fine, even if it could result in an unpleasant legal battle. He needs to protect his business, and protect other font creators, of course. If someone wants to use a font for a trademark, the font creator should be compensated properly.

This whole debacle made me appreciate Twitter. I don't use it much, but I guess it can be useful for engaging people in conversation over certain topics.


----------



## Taking my troll a$$ outta here

MyraScott said:


> The Forever Cocky Time Walker (A LitRPG Novel)


&#128514;&#128514;&#128514;

I've read the court docs but I am completely confused on how the complaints can all be tossed together like that. I am baffled by the inclusion of the book promoter as well.


----------



## Elizabeth S.

EB said:


> &#128514;&#128514;&#128514;
> 
> I've read the court docs but I am completely confused on how the complaints can all be tossed together like that. I am baffled by the inclusion of the book promoter as well.


I don't understand suing the publicist either. She's just a person providing a service for the publishers of the anthology. Possibly a scare tactic to prevent others from working with them/promoting the Cocktales book?


----------



## Rose Andrews

jb1111 said:


> Keep in mind that in legal memoranda and affidavits the wording can just be exaggerations written by the attorney to make a _legal argument._ The author may not actually have said it word for word, and chances are kinda high that the author didn't actually say any of those things that way. This is how things work in lawsuits sometimes. Attorney talks to client. Needs affidavit. Emphasises certain points to get the legal argument across.
> 
> And it's possible that those statements have a degree of truth: some of the readers probably _do_ make purchases based on the cover or title. How many times in KBoards (and other forums) are new authors told that they want a professional looking cover and snappy title that catches the eye of the reader?


I wish that were true but no. One of the author's original complaints was that readers were confusing her series/books with those of other authors who have the same titles. So the legal wording on that document sounds right given her public statement as to why she filed for the trademark in the first place (one reason among several).

What kills me is this: if this case ends up swaying her way, what about the rest of us? What will happen to our industry then if we can't use the same common words to title our books? Do I really think it'll happen? No. But it still leaves one wondering.


----------



## jb1111

Rosie A. said:


> I wish that were true but no. One of the author's original complaints was that readers were confusing her series/books with those of other authors who have the same titles. So the legal wording on that document sounds right given her public statement as to why she filed for the trademark in the first place (one reason among several).
> 
> What kills me is this: if this case ends up swaying her way, what about the rest of us? What will happen to our industry then if we can't use the same common words to title our books? Do I really think it'll happen? No. But it still leaves one wondering.


I"m guessing that if it goes her way, there will be an increasing number of restrictions on what you can put on your cover as well as which word you can use in your title, and which name you can use, as I've seen several authors TM their various pen names.

What I don't understand is whether this thing has been going on in the trad publishing world already, and we just haven't heard about it or noticed it yet.

There are a lot of KBoarders here with connections to that world.

Has this always been happening there also? To this extent?


----------



## Rose Andrews

The thing is that we all know similar or same titles are a common thing in publication. One of my books has the same title as the series title of another author who writes in my genre & category. Totally an accident. But it happened. I pointed this out to her and we joked about it, deciding to pull together instead. It's not a big deal. Nor does it mean we copied each other. This sort of thing happens all the time because words, especially in genre fiction, have power, and short catchy titles fare best for readers. They deliver powerful messages in a couple words. Why is that such a bad thing? It honestly gives me chills thinking she could win.


----------



## horse_girl

Ros_Jackson said:


> It might also be useful for American authors to write to their legislators, because it's possible this is out of the USPTO's hands to an extent due to funding. If they were allowed to charge more for filings, perhaps they could employ more people to check things?


I agree. Something needs to change so these abuses can't happen. There's now a form at https://www.petition2congress.com/ctas/trademark-reform to help with legislator and presidential contacting about this issue. If we can make them aware, perhaps something can get done--this is a bipartisan topic that affects everyone. You'd think they could agree on reforming trademark law or the USPTO.


----------



## 97251

This seems an initiative in the right direction.

I'm not sure if it's the right way to do it, though

https://www.petition2congress.com/ctas/trademark-reform


----------



## jb1111

Rosie A. said:


> The thing is that we all know similar or same titles are a common thing in publication. One of my books has the same title as the series title of another author who writes in my genre & category. Totally an accident. But it happened. I pointed this out to her and we joked about it, deciding to pull together instead. It's not a big deal. Nor does it mean we copied each other. This sort of thing happens all the time because words, especially in genre fiction, have power, and short catchy titles fare best for readers. They deliver powerful messages in a couple words. Why is that such a bad thing? It honestly gives me chills thinking she could win.


I don't have any common titles I know about, but it wouldn't surprise me. In my genre, if you just peruse the numerous offerings you see similar titles galore. I would think that most authors either see the common title, and perhaps change it. Or, they leave it as is, being that the cover itself may be completely different. Suing somebody over it I would think is the last thing they would do.

Of course, if someone has a series, and it's a big seller, and it has a theme, and they thought someone else was trying to horn in on that theme, I can see why they would want to TM their brand. I understand that much. It's the way it was done in this 'cocky' case that bothers me.

It wasn't a series name and/or logo that was TMed, and it wasn't a phrase that was TMed, either. It was just a word. And in the hot romance genre, they like to have their guys masculine, abrasive, 'cocky', boastful -- all those bad boy traits. And maybe there are 20 words that are common in describing it. So I suppose there are 19 words left to be TMed before that dries up.


----------



## unkownwriter

Using the same titles is common. I've had it happen myself. My UF book was originally titled "Spellbound", but when I searched, there were hundreds, if not thousands of books with that as a title or subtitle/series title. So, I changed it. No big deal, but it was my choice, I wasn't forced to do it because someone was trying to kill the competition by trademarking such a common word.

I think the only reason we can use the word "zombie" in a title -- or as a subject -- is because a movie studio messed up decades ago and let the copyright run out on Romero's film. They should have trademarked the word and the idea, which was unique at the time. But thankfully, it's a word I can still use, at least for now. Though no one should be able to get a trademark on a word that's been used in fiction almost since I was born (and that's a long time).


----------



## Simon Haynes

Wasn't there an author who trademarked Berserker back in the 80's? Maybe even earlier. I remember 30+ years ago, thinking 'well I can't use that in a title.'

Oh, yep:

http://www.berserker.com/

"BERSERKER is a registered trademark of JSS Literary Productions"


----------



## David VanDyke

Simon Haynes said:


> Wasn't there an author who trademarked Berserker back in the 80's? Maybe even earlier. I remember 30+ years ago, thinking 'well I can't use that in a title.'
> 
> Oh, yep:
> 
> http://www.berserker.com/
> 
> "BERSERKER is a registered trademark of JSS Literary Productions"


Probably only enforceable if the Berserker in question is an AI-controlled killer starship, not, say, a Viking warrior.

https://www.barnesandnoble.com/w/war-of-the-vikings-m-harold-page/1119236061?


----------



## Desert Rose

she-la-ti-da said:


> I think the only reason we can use the word "zombie" in a title -- or as a subject -- is because a movie studio messed up decades ago and let the copyright run out on Romero's film. They should have trademarked the word and the idea, which was unique at the time.


I don't think Romero's living dead were called zombies in the movie, but even if they had been, White Zombie came out in 1932. The word had definitely been around for a while pre-Romero.


----------



## 41419

It's a very old word with variations going back to the 8th century. First recorded use in English is from 1819.


----------



## unkownwriter

No, Romero didn't want his creations called zombies, he called them ghouls, if I recall. But, the concept as he wrote it was unique, and not really like Voodoo zombies. The general public, the press and everyone involved in movies and television called the risen dead zombies, and it passed into the common world.


----------



## SA_Soule

Evenstar said:


> I've just trademarked the term "Bad Boy" within a series title. Please change all your titles immediately, or pay me one million dollars per book to continue usage.


This made me giggle.


----------



## horse_girl

RPatton said:


> When this first happened, there was a small movement (I wish it gained more traction because it was such a positive response to a negative event) where authors posted their books and 3-5 other books that shared their title with links to the shared books. The coolest thing was that they were all so different. Some were similar, but you'd have to have some serious impairments to actually confuse them.


In all this hullaballoo, I've been thinking it would be fun to get different lists of identical titles with purchase links as a cross-promotion. It would prove a point of unity and fun and be a great way for authors to promote each others' works.


----------



## Jan Hurst-Nicholson

horse_girl said:


> In all this hullaballoo, I've been thinking it would be fun to get different lists of identical titles with purchase links as a cross-promotion. It would prove a point of unity and fun and be a great way for authors to promote each others' works.


Sounds like a fun idea, but would it be difficult getting hold of the other authors?


----------



## Used To Be BH

Jan Hurst-Nicholson said:


> Sounds like a fun idea, but would it be difficult getting hold of the other authors?


It would be a little work for sure. Ones on Kboards could be PMed. Ones not on Kboards probably have a website that could be accessed from their Amazon author page, and there's probably a contact email on there. Searching for identical or similar titles is easy. It's the author contacts would take time.


----------



## Guest

she-la-ti-da said:


> No, Romero didn't want his creations called zombies, he called them ghouls, if I recall. But, the concept as he wrote it was unique, and not really like Voodoo zombies. The general public, the press and everyone involved in movies and television called the risen dead zombies, and it passed into the common world.


Yes, the ghoul is actually the correct term for what they are. It comes from Arabic mythology (ghul). The zombie of Voodoo are actually "harmless" for the most part and, in the folklore, were used mostly for manual labor.

Granted, if I saw one coming at me, it wouldn't matter what you called it. My heart would explode and I would be dead, so...


----------



## Ros_Jackson

horse_girl said:


> In all this hullaballoo, I've been thinking it would be fun to get different lists of identical titles with purchase links as a cross-promotion. It would prove a point of unity and fun and be a great way for authors to promote each others' works.


Fun, but would mess up your Also-Boughts if they're in different genres.


----------



## horse_girl

Ros_Jackson said:


> Fun, but would mess up your Also-Boughts if they're in different genres.


Not necessarily. It just depends how open readers are to different genres.

I think I will start a new thread for this idea....


----------



## unkownwriter

> Granted, if I saw one coming at me, it wouldn't matter what you called it. My heart would explode and I would be dead, so...


Same here. I like to think I'd be all Rambo on the dead, but that's a nice fantasy to have when I'm not drooling over my boyfriend Daryl Dixon.


----------



## Jena H

horse_girl said:


> In all this hullaballoo, I've been thinking it would be fun to get different lists of identical titles with purchase links as a cross-promotion. It would prove a point of unity and fun and be a great way for authors to promote each others' works.


This would be a neat idea. And yeah, I realize that there could be books with same title but in different genres, but that might be part of the fun. Sort of like the Stories on the Go anthology.


----------



## Becca Mills

FYI, @cockybot made this graphic to help people decide whether or not to pursue TMs:


----------



## Becca Mills

Just a few of the fiction TM applications @cockybot has tossed up over the last few days, offered strictly FYI ...

'NUFF SAID! (https://twitter.com/cockybot/status/1001030837519859712, https://twitter.com/cockybot/status/1001031345504534529)
DOGS AND BOOKS (https://twitter.com/cockybot/status/1001038441314861056)
US SPACE FORCE (https://twitter.com/cockybot/status/100103945590435020
HOW CAN I WIN (https://twitter.com/cockybot/status/1001039963188703232)
FIRST LAW (https://twitter.com/cockybot/status/1001048575990611969)
HOUSE AND WAGON (https://twitter.com/cockybot/status/1001055162058731520)
ESCAPEES (https://twitter.com/cockybot/status/1001055669338783744)
FUSE (https://twitter.com/cockybot/status/1001056680250040320)
SHORT STORY UNIVERSE (https://twitter.com/cockybot/status/100105871007919308
THE BOBCAT (https://twitter.com/cockybot/status/1001060735772852224)
RETURN OF THE GUARDIANS (https://twitter.com/cockybot/status/1001062758941523969)
LOVE THE WORD (https://twitter.com/cockybot/status/1001064788548452352)
THE ESSENTIALZ (https://twitter.com/cockybot/status/1001067322696609792)
LIVEWIRE (https://twitter.com/cockybot/status/1001375443428102144)
TEXTIES (https://twitter.com/cockybot/status/1001378470226612224)
AMERICAN GHOST (https://twitter.com/cockybot/status/1001380488492204032)
ROYAL SCANDALS (https://twitter.com/cockybot/status/1001729227543097344)


----------



## APeter

FYI

https://www.eff.org/takedowns/author-trademarks-cocky-earns-ire-romance-writers-everywhere


----------



## Becca Mills

A few more ...

STARGAZER (https://twitter.com/cockybot/status/1000677606432239616)
DEAR BROWN GIRL (https://twitter.com/cockybot/status/1000674560260231169)
THE OREGON TRAIL (https://twitter.com/cockybot/status/1000668473230483457)
SUPER MONSTERS (https://twitter.com/cockybot/status/1000663901829087232)
UNSERIOUS (https://twitter.com/cockybot/status/1000658322905690113)
GALAXY'S EDGE (https://twitter.com/cockybot/status/1000656802793472000, https://twitter.com/cockybot/status/100065629550077132
THE CREEPS (https://twitter.com/cockybot/status/1000654771362004993)
PATAGONIA (https://twitter.com/cockybot/status/1000651219168194560)
PRETTY SMART (https://twitter.com/cockybot/status/1000318594272477184)
VALENCE (https://twitter.com/cockybot/status/1000308951030816769)
KING JAMES III (https://twitter.com/cockybot/status/1000305900261867521)
BABY 101 (https://twitter.com/cockybot/status/1000303363618095104)
STATE OF FEAR (https://twitter.com/cockybot/status/100029879933873356
QUANTUM SERIES (https://twitter.com/cockybot/status/100029727521254604
DARE (https://twitter.com/cockybot/status/1000284336279580673)
CURRENT (https://twitter.com/cockybot/status/1000283830467506182)
OUTBREAK (https://twitter.com/cockybot/status/100027858195033292
SHIFTER WORLD (https://twitter.com/cockybot/status/999917316958703616)
ENCOUNTER (https://twitter.com/cockybot/status/998828510264242177)
IN THIS MOMENT (https://twitter.com/cockybot/status/997389595204509696)
PSI-OPS (https://twitter.com/cockybot/status/997386037377679360)
SPY GIRL (https://twitter.com/cockybot/status/99668957529140428

I think some of these have already been published for opposition, and letters of protest are unlikely to be considered on applications that have reached that status. I think. Still not entirely clear on this stuff.


----------



## C. Gockel

Becca Mills said:


> A few more ...
> 
> STARGAZER (https://twitter.com/cockybot/status/1000677606432239616)
> DEAR BROWN GIRL (https://twitter.com/cockybot/status/1000674560260231169)
> THE OREGON TRAIL (https://twitter.com/cockybot/status/1000668473230483457)
> SUPER MONSTERS (https://twitter.com/cockybot/status/1000663901829087232)
> UNSERIOUS (https://twitter.com/cockybot/status/1000658322905690113)
> GALAXY'S EDGE (https://twitter.com/cockybot/status/1000656802793472000, https://twitter.com/cockybot/status/100065629550077132
> THE CREEPS (https://twitter.com/cockybot/status/1000654771362004993)
> PATAGONIA (https://twitter.com/cockybot/status/1000651219168194560)
> PRETTY SMART (https://twitter.com/cockybot/status/1000318594272477184)
> VALENCE (https://twitter.com/cockybot/status/1000308951030816769)
> KING JAMES III (https://twitter.com/cockybot/status/1000305900261867521)
> BABY 101 (https://twitter.com/cockybot/status/1000303363618095104)
> STATE OF FEAR (https://twitter.com/cockybot/status/100029879933873356
> QUANTUM SERIES (https://twitter.com/cockybot/status/100029727521254604
> DARE (https://twitter.com/cockybot/status/1000284336279580673)
> CURRENT (https://twitter.com/cockybot/status/1000283830467506182)
> OUTBREAK (https://twitter.com/cockybot/status/100027858195033292
> SHIFTER WORLD (https://twitter.com/cockybot/status/999917316958703616)
> ENCOUNTER (https://twitter.com/cockybot/status/998828510264242177)
> IN THIS MOMENT (https://twitter.com/cockybot/status/997389595204509696)
> PSI-OPS (https://twitter.com/cockybot/status/997386037377679360)
> SPY GIRL (https://twitter.com/cockybot/status/99668957529140428
> 
> I think some of these have already been published for opposition, and letters of protest are unlikely to be considered on applications that have reached that status. I think. Still not entirely clear on this stuff.


Is Stargazer already issued? It is used by several different series.

Here is what I found when I searched by Word Mark:

Word Mark	STARGAZER
Goods and Services	IC 009. US 021 023 026 036 038. G & S: Audio books in the nature of novels; Audio books in the field of romance; Downloadable series of fiction books; Downloadable e-books in the field of romance. FIRST USE: 20160817. FIRST USE IN COMMERCE: 20160817
IC 016. US 002 005 022 023 029 037 038 050. G & S: Books in the field of romance; Series of fiction books; Series of fiction works, namely, novels and books; Printed books in the field of romance. FIRST USE: 20160817. FIRST USE IN COMMERCE: 20160817

Standard Characters Claimed	
Mark Drawing Code	(4) STANDARD CHARACTER MARK
Serial Number	87807967
Filing Date	February 22, 2018
Current Basis	1A
Original Filing Basis	1A
Owner	(APPLICANT) Voelker, Steven C DBA 13th Story Press INDIVIDUAL UNITED STATES P.O. Box 506 Swarthmore PENNSYLVANIA 19081
Attorney of Record	Joseph Becker, Esq
Type of Mark	TRADEMARK
Register	PRINCIPAL
*Live/Dead Indicator	LIVE*

Bolded the part I think is important. Does LIVE mean that we can't protest it unless "Steve" goes full Faleena?

Here is the first series that comes up with "Stargazer" on Amazon: https://www.amazon.com/Hunter-Stargazer-Book-1-ebook/dp/B01N07XCO8/ 
Here is another series that definitely predate's the TM Applicants: https://www.goodreads.com/book/show/15744557-star-crossed?from_search=true


----------



## jb1111

C. Gockel said:


> Stargazer is Tasha Black, technically (it says it was filed by some Steve guy, I dunno if that is the actual author or not.) Is it already issued? It is used by several different series.
> 
> -snip-
> 
> Owner	(APPLICANT) Voelker, Steven C DBA 13th Story Press INDIVIDUAL UNITED STATES P.O. Box 506 Swarthmore PENNSYLVANIA 19081
> Attorney of Record	Joseph Becker, Esq
> Type of Mark	TRADEMARK
> Register	PRINCIPAL
> *Live/Dead Indicator	LIVE*
> 
> Bolded the part I think is important. Does LIVE mean that we can't protest it unless "Tasha" goes full Faleena?


As I mentioned about eight pages back, it's interesting how much about the authors can be revealed in these public legal documents.

As for your question, if you click the first link on the Cockybot tweet, it takes you to the status page, and it says:

"LIVE/APPLICATION/Awaiting Examination. The trademark application has been accepted by the Office (has met the minimum filing requirements) and has not yet been assigned to an examiner."

My guess is that the TM is still going through the process. It says that these TM apps can go to an examiner about three months after the filing date, and the filing was some time in February.


----------



## Becca Mills

C. Gockel said:


> Stargazer is Tasha Black, technically (it says it was filed by some Steve guy, I dunno if that is the actual author or not.) Is it already issued? It is used by several different series.
> 
> Here is what I found when I searched by Word Mark:
> 
> Word Mark	STARGAZER
> Goods and Services	IC 009. US 021 023 026 036 038. G & S: Audio books in the nature of novels; Audio books in the field of romance; Downloadable series of fiction books; Downloadable e-books in the field of romance. FIRST USE: 20160817. FIRST USE IN COMMERCE: 20160817
> IC 016. US 002 005 022 023 029 037 038 050. G & S: Books in the field of romance; Series of fiction books; Series of fiction works, namely, novels and books; Printed books in the field of romance. FIRST USE: 20160817. FIRST USE IN COMMERCE: 20160817
> 
> Standard Characters Claimed
> Mark Drawing Code	(4) STANDARD CHARACTER MARK
> Serial Number	87807967
> Filing Date	February 22, 2018
> Current Basis	1A
> Original Filing Basis	1A
> Owner	(APPLICANT) Voelker, Steven C DBA 13th Story Press INDIVIDUAL UNITED STATES P.O. Box 506 Swarthmore PENNSYLVANIA 19081
> Attorney of Record	Joseph Becker, Esq
> Type of Mark	TRADEMARK
> Register	PRINCIPAL
> *Live/Dead Indicator	LIVE*
> 
> Bolded the part I think is important. Does LIVE mean that we can't protest it unless "Tasha" goes full Faleena?


I think "live" simply means the application hasn't been rejected, abandoned, or withdrawn. Versus "dead" -- those are applications that are no longer under consideration. According to Google: "a dead or abandoned status for a trademark application means that specific application is no longer under prosecution within the USPTO, and would not be used as a bar against your filing."

The key for letters of protest, as I understand it, is to get them in before the TM application is published for opposition. Counterintuitively, publishing for opposition seems to mark the point at which an application can no longer be easily spoken up against.  There's a different process for tackling applications that have been published for opposition, I think, one that's harder and more costly ... hope I'm remembering that right ...


----------



## C. Gockel

Researching this, I can see why whoever it is wants to trademark Stargazer, there appears to be another series that popped up about the same time with the same sort of subject matter. 

ETA: No, it looks like the other series was first.

ETA 2: No, it looks like the other series was first and then rebranded. 

What a mess.


----------



## Ann in Arlington

Becca Mills said:


> FYI, @cockybot made this graphic to help people decide whether or not to pursue TMs:


So . . . IANAL . . . and this graphic is generally useful. BUT. I thought "Bundt" -- which he has at the 'not registerable' end of the spectrum -- WAS trademarked . . . it's that specific fluted pan. My mother had a more square edged one that she used for angel food cake but got a Bundt fluted pan sometime in the 60s and used it for heavier cakes. (mmmm Tunnel of fudge!)

Found this on Wikipedia . . . not a difinitive source, of course, but rings of truth: https://en.wikipedia.org/wiki/Bundt_cake


----------



## unkownwriter

> Researching this, I can see why whoever it is wants to trademark Stargazer, there appears to be another series that popped up about the same time with the same sort of subject matter.


The thing that gets me with something like this is, no one should get to copyright specific words or phrases that are in common use. If someone else uses that word or phrase in a book, even if it's similar, too bad. Make your book look better, do a better blurb, do more promo so people want your book. In other words, compete. If you come up with a specific series name, like Vandium Stargazer, then trademark that, because it's unique. The Boys From Booker Street would be unique, but not just The Boys.

This whole thing is idiotic, and the trademark office needs to wake up and get schooled on how this stuff works for books and other media.


----------



## Tasha Black

Hey all, the trademark for Stargazer was filed by my publisher, 13th Story Press, back in February (long before Cocky). It was done with no intention of interfering with any other author's work. However, I've asked for the application to be abandoned and I am told that happened this morning and should show up on the database that way within 24 hours. Have a great day, fellow Stargazers!


----------



## Used To Be BH

Tasha Black said:


> Hey all, the trademark for Stargazer was filed by my publisher, 13th Story Press, back in February (long before Cocky). It was done with no intention of interfering with any other author's work. However, I've asked for the application to be abandoned and I am told that happened this morning and should show up on the database that way within 24 hours. Have a great day, fellow Stargazers!


That's very thoughtful of you!


----------



## Used To Be BH

Becca Mills said:


> FYI, @cockybot made this graphic to help people decide whether or not to pursue TMs:


It's too bad the trademark office doesn't use that.


----------



## Used To Be BH

she-la-ti-da said:


> The thing that gets me with something like this is, no one should get to copyright specific words or phrases that are in common use. If someone else uses that word or phrase in a book, even if it's similar, too bad. Make your book look better, do a better blurb, do more promo so people want your book. In other words, compete. If you come up with a specific series name, like Vandium Stargazer, then trademark that, because it's unique. The Boys From Booker Street would be unique, but not just The Boys.
> 
> This whole thing is idiotic, and the trademark office needs to wake up and get schooled on how this stuff works for books and other media.


Yes, I don't know how the law is worded, but it seems as if the Trademark Office is rubber-stamping rather than doing even the most cursory examination. Common sense should dictate that common words should probably not be trademarked except for very narrowly defined uses.

Didn't trademarking begin as an effort to protect company names and logos? I know it can also apply to product names, but it shouldn't be used in such a way as to prevent the use of common words.

Some of this seems like an effort to do an end-run around the copyright law. Can't copyright a title? OK, trademark it instead.


----------



## Becca Mills

Ann in Arlington said:


> So . . . IANAL . . . and this graphic is generally useful. BUT. I thought "Bundt" -- which he has at the 'not registerable' end of the spectrum -- WAS trademarked . . . it's that specific fluted pan. My mother had a more square edged one that she used for angel food cake but got a Bundt fluted pan sometime in the 60s and used it for heavier cakes. (mmmm Tunnel of fudge!)
> 
> Found this on Wikipedia . . . not a difinitive source, of course, but rings of truth: https://en.wikipedia.org/wiki/Bundt_cake


Interesting! I searched the USPTO database and found a stylized italic TM for the word "Bundt," but no wordmark. Lots of TMs that contain the word "bundt," though. Maybe Nordic Ware's TM went generic and was abandoned? That can happen to TMs that start to stand for their products more generally (Xerox, Kleenex, Dumpster). Either you defend them to keep that from happening, or you lose them and they enter the language as regular words. I think "escalator" used to be a wordmark, for instance.


----------



## Becca Mills

Some recent blog posts I've found interesting:

This one by Anne Gilson LaLonde, an attorney specializing -- I think -- in trademark law. She seems to think Kevin Kneupper may have trouble succeeding with his petition to cancel due to the TM's not having a clear negative impact on him, personally.

This one by Marc Whipple, an IP attorney. The post takes a blow-by-blow look at the elements of Hopkins's court case. A hearing in that case is happening tomorrow.


----------



## Justa Nobody

Removed 9/19/2018 - non-agreement with VerticalScope TOS


----------



## Becca Mills

Repeating my earlier guidance, for those who missed it:



Becca Mills said:


> I've just deleted a number of posts. To reiterate: we won't be contributing further to the pile-on, and we won't be levying personal insults. This situation raises a number of issues we need to understand clearly, analyze, and respond to strategically as authors/publishers. Faleena Hopkins's personal traits are not among those issues. Those of you who just lost posts, further such will lead to your exclusion from the thread.


----------



## 91831

Becca Mills said:


> Some recent blog posts I've found interesting:
> This one by Marc Whipple, an IP attorney. The post takes a blow-by-blow look at the elements of Hopkins's court case. A hearing in that case is happening tomorrow.


I saw he updated on the 30th regarding new information that I hadn't heard before (as in the Judge had seen more things) does anyone know if there's updated documents to be seen about it (as Kevin had shared before?)?


----------



## Elizabeth S.

evdarcy said:


> I saw he updated on the 30th regarding new information that I hadn't heard before (as in the Judge had seen more things) does anyone know if there's updated documents to be seen about it (as Kevin had shared before?)?


Courtney Milan tweeted that she'd post them tonight if no one else has.


----------



## Michaela Strong

Elizabeth S. said:


> Courtney Milan tweeted that she'd post them tonight if no one else has.


Here's the twitter thread where she posted:

https://twitter.com/courtneymilan/status/1002308847388639232


----------



## Elizabeth S.

And an update from RWA:

https://www.rwa.org/p/bl/et/blogid=20&blogaid=2213

Based on their recent actions, I'm renewing my (long lapsed) membership.


----------



## 91831

Elizabeth S. said:


> And an update from RWA:
> 
> https://www.rwa.org/p/bl/et/blogid=20&blogaid=2213
> 
> Based on their recent actions, I'm renewing my (long lapsed) membership.





Michaela Strong said:


> Here's the twitter thread where she posted:
> 
> https://twitter.com/courtneymilan/status/1002308847388639232


Thanks gals!

ETA: Yeah, I trying to figure out if non-US residents/citizens can join the RWA.


----------



## 91831

megosborne said:


> You can! At least, you could. I was a member a couple of years back (and am in the UK) I just enquired about re-registering.


Ooh! Thanks! Adding to my 'to-do-once-I-have-more-money-list'


----------



## Jan Hurst-Nicholson

evdarcy said:


> Ooh! Thanks! Adding to my 'to-do-once-I-have-more-money-list'


I bet my list is longer than yours


----------



## 91831

Jan Hurst-Nicholson said:


> I bet my list is longer than yours


And this is why we need post likes!


----------



## unkownwriter

kw3000 said:


> Oh, great, so I guess my new series "The Kahwallawallapoopoo Pepsi Murders" starring my main character, Detective Apple Harlequin is now a no-go.


I think you're good, except for the Pepsi.



> Some of this seems like an effort to do an end-run around the copyright law. Can't copyright a title? OK, trademark it instead.


Wouldn't surprise me a bit, but isn't trademarking something an expensive thing to do? My understanding is it has some pretty hefty costs, especially since one needs an attorney. If not, I need to look into some things...

Tasha, thank you for letting us know, and for getting them to drop the trademark. Perhaps they can find something more specific and unique to work on, which will benefit you in the future.


----------



## 91831

It is being reported that a ruling has been made.  Seems the judge made a ruling to deny the TRO ... I'm not quite clear that if that means Crescent and co. won, or if it's still ongoing.


----------



## D.A. Boulter

evdarcy said:


> It is being reported that a ruling has been made. Seems the judge made a ruling to deny the TRO ... I'm not quite clear that if that means Crescent and co. won, or if it's still ongoing.


Crescent and Watson won with respect to the TRO against the books.

https://twitter.com/eunapark

I believe that the hearing for the TRO on Kneupper comes today.

If the Judge denies that TRO, then we're back with the Trade Mark and Patent Office.


----------



## Justa Nobody

Removed 9/19/2018 - non-agreement with VerticalScope TOS


----------



## Guest

D.A. Boulter said:


> Crescent and Watson won.
> 
> https://twitter.com/eunapark
> 
> I believe that the hearing for the TRO on Kneupper comes today.


Kneupper was dismissed from this case.


----------



## 91831

Ah, thanks for the clarification.


----------



## unkownwriter

> Sounds like it was an all-around win for the Defendants this morning. IANAL, so just my uneducated opinion.


Seconding this.


----------



## Monique

Hehehe.


----------



## Guest

JRTomlin said:


> Seriously no one here is discussing the court proceedings? They are hilarious.


There's a huge thread about this already, 27 pages and still going.
http://www.kboards.com/index.php/topic,263084.0.html


----------



## Monique

That transcript is hilarious.


----------



## Jena H

The transcript is posted in the long Trademark thread.  Page 27. Also a snippet or two was quoted.  

I started reading the transcript, but it's late and I'm tired. I'm waiting for the Reader's Digest Condensed version.
(Hmmm, does anyone under the age of 30 or 35 get that reference??)


----------



## inconsequential

Since I don't speak legalese, can someone break all that down in layman's terms?


----------



## Forgettable

.


----------



## Kal241

LMareeApps said:


> My layman understanding of the transcript:
> 
> An attempt was made to prevent Mr Kneupper from opposing the trademark. That was denied by the judge, so that matter goes back to the normal trademark opposition process (I'm not from the US and I'm too lazy to look up the correct titles of whomever looks after those matters).
> 
> The other issue was an attempt to prevent the Cocktales Anthology, and Tara Crescent's books from being sold as they infringe on the trademark. the judge went through 8 criteria and claimed he was unable to determine a ruling on infringement either way without further discovery (the date for that hearing is currently September 14), but did rule that the anthology and books could continue to be sold in the interim.


So Faleena's 0/2, in other words.


----------



## Forgettable

.


----------



## inconsequential

Weird question for anyone who cares to venture a guess...

Do you think it would have been immediately dismissed if the Cocktales book had been named: Cocktales: The Cocked Up Collection??

Because 'cock,' 'cocktales,' and 'cocked' are not the actual word she's trying to TM. ??


----------



## Rose Andrews

Basically the judge isn't stepping in to expedite the process. American courts are notorious for encouraging opposing parties to resolve their differences outside of court (with court being a last resort). Since the trademark office is still in the process of handling this case the judge is letting that take place, is my understanding.

The TRO is a no-go, meaning Mr. Kneupper is free to continue pursuing the cancellation of the trademark. Also, it seems the other author in the suit is able to continue publishing/titling whatever she wants...if I'm wrong here someone please correct me. The judge mentioned that, in his opinion, the trademark is weak because FH didn't enforce it right away. There's more to it than that but this is just super flimsy basic.

Also, one thing to take into consideration about the trademark being upheld/or not is that the term 'cocky' is a romance trope, and for someone to have a trademark on it would prevent others from competing in that market, which goes against business laws and fair trade bla bla in the U.S. Anyway, just my understanding here.


----------



## Forgettable

.


----------



## Becca Mills

I've merged in a small thread. Sorry for any confusion!


----------



## Becca Mills

The transcript is a hoot. Who really knows, but I suspect the judge got a kick out of reading all the "cocky" book titles to the court. 



> To sum up, the most important factor here as we have gone through the eight [questions of the infringement test] is the strength of the plaintiffs' mark. It seems to me at this point of the record and given the way that these titles look to be more adjectives than indications of source, that we have a weak mark. It is not clear that defendants use the word "Cocky" in a way that makes it an indication of source. It is more a description of the nature of the contents: Her Cocky Firefighters, Her Cocky Doctors.


(from (p. 41) of the transcript)

I pulled the above out of the judge's ruling because it may provide a helpful model for how to talk about proposed marks. What he's saying, in my understanding, is that he thinks "cocky" is being used as a regular adjective -- meaning, the word is descriptive of the nature of the books' male character(s). (The judge talked quite a bit about cockiness as a description of "male prowess.") It's not an "indication of source," meaning you don't look at a book and think, "Ah, I see the word 'cocky' ... this *must* be a book by __________!" The word is not the defining thing that flags a book as being by a particular author or part of a particular series. Seeing "cocky" on a book is a weak identifier of _source_ compared to seeing, say, "Harry Potter" or "Nancy Drew" or "for Dummies" on a book.

The kinds of questions he seems to be answering for himself may be useful in thinking through what to focus on in future letters of protest on other proposed marks: Does the proposed word/phrase unquestionably indicate that you're looking at a book by __________ or from __________ series? Or is the word/phrase mostly just descriptive of the book's events, characters, or themes? Is there something else about the book that's more strongly and obviously indicative of "source"?


----------



## D.A. Boulter

Becca Mills said:


> The transcript is a hoot. Who really knows, but I suspect the judge got a kick out of reading all the "cocky" book titles to the court.


I enjoyed it all the more as I started thinking of the whole thing as an episode of "Night Court".


----------



## 91831

Evelyn Alexie said:


> Courtney Milan posted a transcript of today's hearing on her site:
> http://www.courtneymilan.com/cockydocs/I61RHOPM.pdf
> 
> Two of my favorite parts:
> 
> Hopkins' attorney: Plaintiff has sold 600,000 copies of her works.
> Judge: That doesn't prove quality.
> 
> Judge: (Describing a cover) Two male figures. One seems to be wearing a stethoscope, indicating he is a doctor, but he is stripped to the waist.
> Other attorney: Doesn't look like my doctor, your honor.


I thought I'd started reading the script for Legally Blonde when I opened it!
Mr. Cardillo: ... First, this court has subject matter jurisdiction--
Judge: I'm not worried about that.

I wanted to shout VOTE FOR ELLE!


----------



## Patty Jansen

I wasn't quite sure what to think about this part:



> ... It seems to me that the readers here are very specific to the genre of books which I
> would call cheap romance novels and so know what is going on
> and are not fooled, particularly the way the titles are used.


"cheap romance novels"?


----------



## Ann in Arlington

Patty Jansen said:


> I wasn't quite sure what to think about this part:
> 
> "cheap romance novels"?


don't see a point in getting twisted knickers . . . . that IS how most people see the genre -- almost all who don't read romance think of it that way, and quite a few who do read it as well. Seems to me the judge (I guess?) is trying to get a handle on the most basic issue and, while he could have chosen better words, or dropped the descriptor 'cheap', he's done so.


----------



## unkownwriter

Oh, man Night Court was a hoot! I never missed an episode. 

My feeling on this is that unless there's a heck of a lot of proof that people were interfering with FH's trade, she isn't going to win this case. She may in fact be found to be impeding the trade of others, since the opposing attorneys can find more proof that others had used the term prior, and that she actually had a different series name while that was happening. Also, they need to bring up selective enforcement, since FH hasn't gone after everyone with the term, especially those who'd used it in a series of books.

My opinion is, if I wrote a book called The Cocky Judge, as long as it wasn't a series and I use a different font and style in the title, then it's good to go. IANAL, but if I wanted that title, I'd go for it.


----------



## Jena H

Could this little guy be next to be featured in a cocky book??

https://www.news.com.au/technology/science/animals/curious-cockatoo-blocks-qld-traffic-cam/news-story/53517e20110b0e045579903ef80dad36


----------



## Jan Hurst-Nicholson

Jena H said:


> Could this little guy be next to be featured in a cocky book??
> 
> https://www.news.com.au/technology/science/animals/curious-cockatoo-blocks-qld-traffic-cam/news-story/53517e20110b0e045579903ef80dad36


Now there's a real cocky cocky.


----------



## MyCatDoesNotConsent

Я не согласен с новым TOS


----------



## Rose Andrews

Evelyn Alexie said:


> The anal-retentive English Major in me appreciated when the judge and the lawyers started trying to parse out the phrase "Cocky Mother's Day"
> 
> Lawyer: The word 'cocky' here is functioning as an adjective.
> Judge: If it is, it's nonsensical.
> 
> But I am puzzled about one thing. I do not want to imply that the plaintiff has the mindset of a vindictive "mean girl" from high school* but I cannot fathom what benefit she could obtain from doxxing the author Tara Crescent. She was able to serve Crescent through the lawyers and Crescent is doing business under the pseudonym, so can't she obtain any monies (if she does) without needing the author's real name? The lawyer's approach was "Well, if she doesn't do it now we're going to send out summonses (presumably to her and Penny Reid) so she might as well get it over with."
> 
> I am learning things about the law through this whole kerfuffle. One lawyer on Twitter pointed out that more authors might want to think about forming an LLC or some such entity to protect against lawsuits if they're going to become more prevalent.
> 
> *But only because I don't want the Mod Squad to rap me over the knuckles with a ruler. Virtual or not, that stings.


Joining RWA has never looked more appealing tbh. My family is in flux right now/moving and our finances are tight, but once things settle back down I'll be getting a membership. If there is one thing I have learned from all this it's that our own will bite.


----------



## 41419

I wrote up a summary of Cockygate to date, along with yesterday's developments, and links to further info if anyone wants it:


----------



## 75814

If someone doesn't write a series inspired by this judge titled Cocky Justice or something similar, I will be very disappointed in this community.


----------



## 41419

Perry Constantine said:


> If someone doesn't write a series inspired by this judge titled Cocky Justice or something similar, I will be very disappointed in this community.


That Cocky Case Fighter bit as well (judge misheard Cage Fighter!)


----------



## Elizabeth S.

Evelyn Alexie said:


> The anal-retentive English Major in me appreciated when the judge and the lawyers started trying to parse out the phrase "Cocky Mother's Day"
> 
> Lawyer: The word 'cocky' here is functioning as an adjective.
> Judge: If it is, it's nonsensical.


IANAL, but it's my understanding that if it's being used an adjective, that would mean it's a descriptive mark and not a protectable trademark. If the "cocky" in the title has a secondary meaning and is not functioning as an adjective, there's a stronger case that it's being used in a distinctive way that merits a TM.

I agree -- the emphasis on revealing Tara's real name is troubling. The phrase the plaintiff's lawyer used in one of the filings seemed hostile and threatening. I hope they're able to keep her name under seal.


----------



## 41419

Elizabeth S. said:


> I agree -- the emphasis on revealing Tara's real name is troubling. The phrase the plaintiff's lawyer used in one of the filings seemed hostile and threatening. I hope they're able to keep her name under seal.


In all the excitement about everything else, this needs to be highlighted. It was a real dirty move and they are still gunning for it.


----------



## G.L. Snodgrass

I believe the Judge ordered the sharing of the real name for discovery purposes. The plaintive can't get all the facts unless they know who they are dealing with.


----------



## Justa Nobody

Removed 9/19/2018 - non-agreement with VerticalScope TOS


----------



## jb1111

G.L. Snodgrass said:


> I believe the Judge ordered the sharing of the real name for discovery purposes. The plaintive can't get all the facts unless they know who they are dealing with.


^^^^^ This.

Judges (and courts) don't want to know a person's identity just for the heck of it.


----------



## jb1111

Quinning said:


> He did, but agreed that it could be given "under seal." Does anyone know what this means? I assume it means in some sort of private communication with the court, so possibly not as a matter of public record, but if that's the case, is there any penalty for anyone revealing the information later?


As far as I know, "under seal" means the _court_ knows the identity, and the identity is possibly used during trial, but it is stricken from the documents that are filed as 'public record'. Many, if not most court documents are public records. Identities can be placed 'under seal' for that reason.

They also do the same with children's names in the public record, in family court dealings here in the US. And there are other cases, like bankruptcies, where certain information is redacted from the record, or placed under a form of 'seal'.

(Anyone here who is an attorney feel free to correct me).


----------



## Rose Andrews

jb1111 said:


> As far as I know, "under seal" means the _court_ knows the identity, and the identity is possibly used during trial, but it is stricken from the documents that are filed as 'public record'. Many, if not most court documents are public records. Identities can be placed 'under seal' for that reason.
> 
> They also do the same with children's names in the public record, in family court dealings here in the US. And there are other cases, like bankruptcies, where certain information is redacted from the record, or placed under a form of 'seal'.
> 
> (Anyone here who is an attorney feel free to correct me).


Under a seal means it's not available for public knowledge. In order for it to be, there needs to be an overturn of that ruling (of it being sealed). So if the author Tara Crescent has to give her real name to the court this would mean that her name wouldn't be made public. I just repeated myself. Sorry. -_-


----------



## AltMe

Look what I found on Quora -

https://www.quora.com/How-was-Faleena-Hopkins-able-to-register-a-trademark-on-the-word-cocky-even-though-its-a-common-use-word

There is actually a response from Faleena on there, although after 1 person got a comment in, she turned off comments. It was posted 21 hours ago.

Maybe someone would like to answer the question fully?


----------



## Rose Andrews

Mercedes Lackey!


----------



## Rick Gualtieri

Puddleduck said:


> Based on the response I got from the trademark office when I emailed them about this, I honestly believe it's because no one there understands why allowing trademarks for common words _for books_ is a problem. They said that common words are trademarked all the time and actually used Apple as an example (as if I weren't aware of it). I had made the (admittedly imperfect, but the closest I could come) analogy of it being like allowing a tech company to trademark a random number, and they pointed out that "409" is trademarked for use as a cleaning product. I really think they just don't grasp the problem.


That makes sense. I mean, we have an insight into this business that someone else wouldn't ... or wouldn't need to. It's like walking into a widget factory and someone describing their widgets to us and then saying "I thought everyone knew this stuff". We can't assume it's common knowledge.


----------



## luis33

Becca Mills said:


> The transcript is a hoot. Who really knows, but I suspect the judge got a kick out of reading all the "cocky" book titles to the court.
> (from (p. 41) of the transcript)
> 
> I pulled the above out of the judge's ruling because it may provide a helpful model for how to talk about proposed marks. What he's saying, in my understanding, is that he thinks "cocky" is being used as a regular adjective -- meaning, the word is descriptive of the nature of the books' male character(s). (The judge talked quite a bit about cockiness as a description of "male prowess.") It's not an "indication of source," meaning you don't look at a book and think, "Ah, I see the word 'cocky' ... this *must* be a book by __________!" The word is not the defining thing that flags a book as being by a particular author or part of a particular series. Seeing "cocky" on a book is a weak identifier of _source_ compared to seeing, say, "Harry Potter" or "Nancy Drew" or "for Dummies" on a book.
> 
> The kinds of questions he seems to be answering for himself may be useful in thinking through what to focus on in future letters of protest on other proposed marks: Does the proposed word/phrase unquestionably indicate that you're looking at a book by __________ or from __________ series? Or is the word/phrase mostly just descriptive of the book's events, characters, or themes? Is there something else about the book that's more strongly and obviously indicative of "source"?


For me the 2nd one.


----------



## C. Gockel

Puddleduck said:


> I had made the (admittedly imperfect, but the closest I could come) analogy of it being like allowing a tech company to trademark a random number, and they pointed out that "409" is trademarked for use as a cleaning product. I really think they just don't grasp the problem.


If that was their response to your number analogy, I don't think the person replying understands trademark.


----------



## MClayton

An update from Publishers Weekly. I'm stretched thin and have lost count of lawsuits, but doesn't this put an end to the issue? https://www.publishersweekly.com/pw/by-topic/industry-news/publisher-news/article/77157-judge-denies-author-attempt-to-trademark-cocky.html


----------



## Rick Gualtieri

MClayton said:


> An update from Publishers Weekly. I'm stretched thin and have lost count of lawsuits, but doesn't this put an end to the issue? https://www.publishersweekly.com/pw/by-topic/industry-news/publisher-news/article/77157-judge-denies-author-attempt-to-trademark-cocky.html


No. It's just the opening salvo. All the judge did was deny preliminary injunctions. It's definitely a strike against her, but far from the final shot in this battle.


----------



## MClayton

Argh.


----------



## Monique

Rose Andrews said:


> Mercedes Lackey!


Awesome.


----------



## Jan Hurst-Nicholson

Oh, dear. More advertising for her books.


----------



## Rose Andrews

TimothyEllis said:


> Look what I found on Quora -
> 
> https://www.quora.com/How-was-Faleena-Hopkins-able-to-register-a-trademark-on-the-word-cocky-even-though-its-a-common-use-word
> 
> There is actually a response from Faleena on there, although after 1 person got a comment in, she turned off comments. It was posted 21 hours ago.
> 
> Maybe someone would like to answer the question fully?


Turned off comments, eh? NO comment. 

This case is honestly a really interesting one and a great way of banding our community together. It seems that, from Puddleduck's conversation with the trademark office, they are totally clueless as to the harm this is likely to cause in the publishing industry. So, with that said, it would be nice to see this case educate them and provoke some changes that will help protect creative property in the future.


----------



## PhoenixS

***********

Comment removed to protect content and data from the over-reaching TOS of new forum owner VerticalScope.

VerticalScope claims rights to any content posted to this site as theirs to disseminate beyond this site in any way they see fit.

Read the Terms of Service, both before AND after you've registered. At the time of this post, the new, more egregious TOS is available to read only after you've registered.

KBoards was purchased by VerticalScope 7.5 years and 4000 posts after I joined. VerticalScope will not allow that existing content to be permanently deleted, despite the fact I did not and do not agree to granting the new owners the rights to my content. 

***********


----------



## Becca Mills

Carol Ann Newsome's answer to the Quora question offers a really clear (to me) explanation of identifiers versus descriptors. Very helpful, IMO. The judge's and litigants' interest in _Cocky Mother's Day_ as a title (see pp. 10-11 and 17-20 of the transcript) makes sense to me now.



MClayton said:


> An update from Publishers Weekly. I'm stretched thin and have lost count of lawsuits, but doesn't this put an end to the issue? https://www.publishersweekly.com/pw/by-topic/industry-news/publisher-news/article/77157-judge-denies-author-attempt-to-trademark-cocky.html


The headline seems misleading to me. Headline-article disjunctions happen sometimes, as the author of an article may not get to write the headline, but that's a surprisingly extreme example ... sort of surprised _Publishers Weekly_ let that one through.


----------



## ........

PhoenixS said:


> This is why Faleena has been harping on that confusion. She's not pointing out how unsophisticated her readers are just because, but because it is THE point of trademark law. Of course, there are other identifiers for a book, such as the author's name, which negates much of the possibility of confusion.


This is such a hard line to walk. To prevail that you need the trademark you must hammer the idea that your readers are unsophisticated twits who click buy on any romance book with a bare chest and the word "cocky" somewhere on the cover. Not only do you have to repeatedly put forward the idea that readers are so stupid they don't read author names but you need to do it multiple times. You need to do it in front of a judge. The transcripts will be spread far and wide.

It really is THE core argument of this issue: my unsophisticated readers will buy any romance with Cocky in it so much that I need this trademark to protect them and me.

Meanwhile, this persistent hammering and essentially describing your readers as idiots isn't good for making sales. Every time it's repeated, the transcript will be circulated.

And there is a loooong time to go still. More hearings, more transcripts, more hammering of the position that romance readers are unsophisticated.


----------



## C. Gold

With author names on books, I can't say I've ever been confused as to which author I'm reading. Furthermore, the ability to view an author's page on Amazon means I'm mostly looking at that author's work and maybe some collaborators or mistakenly added books (rare, but happens). 

I've really enjoyed reading the proceedings. Definitely love the judge's comments! So thanks to everyone keeping us updated.


----------



## jb1111

........ said:


> This is such a hard line to walk. To prevail that you need the trademark you must hammer the idea that your readers are unsophisticated twits who click buy on any romance book with a bare chest and the word "cocky" somewhere on the cover. Not only do you have to repeatedly put forward the idea that readers are so stupid they don't read author names but you need to do it multiple times. You need to do it in front of a judge. The transcripts will be spread far and wide.
> 
> It really is THE core argument of this issue: my unsophisticated readers will buy any romance with Cocky in it so much that I need this trademark to protect them and me.
> 
> Meanwhile, this persistent hammering and essentially describing your readers as idiots isn't good for making sales. Every time it's repeated, the transcript will be circulated.
> 
> And there is a loooong time to go still. More hearings, more transcripts, more hammering of the position that romance readers are unsophisticated.


When you're dealing with sales of thousands a day or week, you are going to be dealing with a certain amount of readers who are "unsophisticated", which is a fancy way of saying they aren't as discerning about things as someone who may be a gung-ho fan of your work.

I wonder how many of James Patterson's fans realize that he doesn't even write his own books anymore -- even with someone else's name plastered on the bottom of the cover.

Then, finally, of all Faleena's hundreds of thousands of readers, how many of them are actually reading the court documents? Or are even aware of the TM issue? Maybe one percent? Maybe five percent?


----------



## VirginiaMcClain

C. Gold said:


> With author names on books, I can't say I've ever been confused as to which author I'm reading. Furthermore, the ability to view an author's page on Amazon means I'm mostly looking at that author's work and maybe some collaborators or mistakenly added books (rare, but happens).
> 
> I've really enjoyed reading the proceedings. Definitely love the judge's comments! So thanks to everyone keeping us updated.


Yes. The transcript provided me with a few good chuckles the other night.


----------



## Ann in Arlington

O.K. folks . . . . the discussion has to be about the ISSUE, not about the person. . . . some recent posts have been removed.


----------



## ........

Sorry, are links to posts Faleena has directly made not allowed? She wrote a post calling her readers sophisticated which is directly opposite what the court submission was. I thought that was clearly about the case and not the person considering it is the core issue of the trademark? Not trying to argue but not sure what is okay to post if Faleena's own posts are not allowed?

_If the screenshot that the tweet showed becomes part of the court case, it may be posted here. After review by the mod team, it was determined that posting the screenshot now is more about Faleena than the case, only serves to inflame and does not advance understanding of the court case involved. You are always welcome to ask in advance if you are not sure about a link. Please PM me if you have any further questions so as to not derail this conversation. Further posts about the moderation will be removed.--Betsy/KB Mod_


----------



## ........

I hope this is about the case... a key point is about confusion by readers. I've just seen correspondence floating on twitter between Tara Crescent and Faleena where they discuss confusion and Faleena concedes no confusion will occur. Not linking but it's over there with the cockygate hash tag.

So far now that's two key points of the trademark case that appear to have been directly refuted by the applicant.


----------



## unkownwriter

........ said:


> I hope this is about the case... a key point is about confusion by readers. I've just seen correspondence floating on twitter between Tara Crescent and Faleena where they discuss confusion and Faleena concedes no confusion will occur. Not linking but it's over there with the cockygate hash tag.
> 
> So far now that's two key points of the trademark case that appear to have been directly refuted by the applicant.


I hope people are screen capping this so it can be presented as evidence in the next court action. If there's no confusion, there's no need to trademark as has been done.


----------



## Elizabeth S.

........ said:


> So far now that's two key points of the trademark case that appear to have been directly refuted by the applicant.


The plaintiff also stated in a video that her sales haven't suffered...which her deposition contradicts. Any knowledgeable legal types know if that could actually factor into the case?


----------



## jb1111

she-la-ti-da said:


> I hope people are screen capping this so it can be presented as evidence in the next court action. If there's no confusion, there's no need to trademark as has been done.


One side or the other could probably subpoena the tweets in question if needed.


----------



## jb1111

Elizabeth S. said:


> The plaintiff also stated in a video that her sales haven't suffered...which her deposition contradicts. Any knowledgeable legal types know if that could actually factor into the case?


I'm guessing it all depends. A trademark is a trademark. If you infringe, you infringe.

But that's just a guess.

The issue will center on the legal factors and legal elements involved in TM infringement, most of which are delineated by the judge in the court document linked earlier in this thread.


----------



## AltMe

Even when an author releases a book a month, there is 29 or 30 days where people are reading something else. Even if there were 20 other authors all writing cocky stories at the same time, all 20 of them would be read by the readers who like those kinds of stories. Nothing about it is taking away anything from any 1 author, other than how good their own books are.

_Edited. Drop me a PM if you have any questions. - Becca_


----------



## Becca Mills

A reminder of what Ann said just a few posts up:



Ann in Arlington said:


> O.K. folks . . . . the discussion has to be about the ISSUE, not about the person. . . . some recent posts have been removed.


----------



## jb1111

RPatton said:


> This isn't entirely accurate. The TRO wasn't because of the trademark, it was about the actions that occurred because of the trademark. One of the damages she claimed was a loss of sales.
> 
> And from what I know, the attorneys involved have been given a lot of this information. Also, I am more than sure they have an intern or first year associate who is tasked with just watching everything she does and keeping track of it.
> 
> _Edited. Drop me a PM if you have any questions. - Becca_


I could come up with my own "Apple" brand phone tomorrow without damaging Apple's sales a whit -- and they still could sue me for infringement. TM infringement is not entirely dependent on a sales loss. They could state that _any_ sale I made with my phony "Apple" phone was a sales loss. But the actual numbers would be less important than whether the offending product caused 'confusion' to a typical consumer, and had the potential of causing a loss.

That was the point I was trying to make.


----------



## ........

So all the TMs on the books and in text have vanished now. The Amazon pages used to have trademark TM on them and so did the covers. The timeline appears to match up to them being removed shortly after Kevin Kneupper filed his opposition. 

I wonder how it affects the case to have a clear timeline of TMs appearing and then being later removed?


----------



## jb1111

........ said:


> So all the TMs on the books and in text have vanished now. The Amazon pages used to have trademark TM on them and so did the covers. The timeline appears to match up to them being removed shortly after Kevin Kneupper filed his opposition.
> 
> I wonder how it affects the case to have a clear timeline of TMs appearing and then being later removed?


I see the trademark symbol (R) next to the names inside the books, and also the blurb, for Cocky Heart Surgeon. The symbol is next to "Cocker Brothers", and the word Cocky in "Cocky series".


----------



## ........

Michael Scott-Earle who is in Faleena's group of friends has applied for multiple single word trademarks https://tsdr.uspto.gov/#caseNumber=87954787&caseType=SERIAL_NO&searchType=statusSearch

Twitter reporting has applied for Star Justice and Destroyer. Haven't seen the filings so can't confirm personally but I expect the information is accurate.

Star Justice maybe he'll get in. Destroyer? Common sci-fi term. Tamer? Not sure.

It does certainly appear as though the applications are coming from a connected group of authors.


----------



## ........

And Michael Scott-Earle has applied for "Dragon Slayer" too. (There are two photos in this link).

https://mobile.twitter.com/KmHalandras/status/1006945919793651712/photo/1

Edit: Found the submission https://tsdr.uspto.gov/documentviewer?caseId=sn87954712#docIndex=0&page=1

Just read that Rick Gualtieri has filed a letter of protest for this one with the USPTO.


----------



## ........

Twitter is claiming someone is applying for "Infinite" too for eBooks. I can't find the listing on USPTO though. Maybe someone will have better luck than me.


----------



## Becca Mills

........ said:


> Twitter is claiming someone is applying for "Infinite" too for eBooks. I can't find the listing on USPTO though. Maybe someone will have better luck than me.


I found one here. Filed June 7, Serial No. 87952802.

The goods and services covered include "downloadable fiction books on a variety of topics, downloadable e-books in the field of fiction and non-fiction stories on a variety of topics and audio books in the field of automobiles and audio systems." Lots of the goods and services have the "in the field of automobiles and audio systems" qualifier, but the wording of the thing I quoted above seems to make the mark apply to ebooks broadly.


----------



## Becca Mills

Some recent offerings from @CockyBot. These are just a few that struck me as I went through my feed, offered to give folks a sense of what's being applied for in the realm of books. They're by no means all the proposed marks @CockyBot has tweeted. If you click through to the tweet, you can follow links to the application on the USPTO site.

Dragon Slayer (https://twitter.com/cockybot/status/1006804712329502720)

Tamer (https://twitter.com/cockybot/status/1006804206999793666)

King of Dinosaurs (https://twitter.com/cockybot/status/1006803701682593794)

The Destroyer (https://twitter.com/cockybot/status/1006803195857985536)

Mad Ghost (https://twitter.com/cockybot/status/1006801679600189441)

Infinite (https://twitter.com/cockybot/status/1006440222723149825)

Unearned Confidence (https://twitter.com/cockybot/status/1006076800189911040)

Planet Express (https://twitter.com/cockybot/status/100607540175023308

Choose Your Own Adventure (https://twitter.com/cockybot/status/1006074372723838976)

Script Novel (https://twitter.com/cockybot/status/1006073607737360384)

Work Is Hell (https://twitter.com/cockybot/status/1005719938286272512)

School Is Hell (https://twitter.com/cockybot/status/100571943105234124

Money Heist (https://twitter.com/cockybot/status/1005353134166687750)

Blind Insect (https://twitter.com/cockybot/status/1004623639394770944)

Last Reality (https://twitter.com/cockybot/status/1004621106857197569)

Remember, Honor, Serve (https://twitter.com/cockybot/status/1004620599640010752)

Legends of Tomorrow (https://twitter.com/cockybot/status/1003904711643181056)

Doom Patrol (https://twitter.com/cockybot/status/1003904207076802560)

Black Lightning (https://twitter.com/cockybot/status/1003903702619443202)

Song Stories (https://twitter.com/cockybot/status/1003534256163848192)

What Are the Odds? (https://twitter.com/cockybot/status/1003533748850184193)

Within Together (https://twitter.com/cockybot/status/1003533243537211392)

Zombie Army (https://twitter.com/cockybot/status/1003177688373194752)

Misfit Memoirs (https://twitter.com/cockybot/status/1002098385111797760)

Warrior Cats (https://twitter.com/cockybot/status/1001730236495482880)

Royal Scandals (https://twitter.com/cockybot/status/1001729227543097344)

The Saint (already published for opposition, https://twitter.com/cockybot/status/100645532375268556

Super Monsters (already published for opposition, https://twitter.com/cockybot/status/1006451791934832641)

Quantum Series (already published for opposition, https://twitter.com/cockybot/status/100644674661072076

Warlock Asylum (already published for opposition, https://twitter.com/cockybot/status/1006441231965011969)


----------



## AltMe

So here's where we end up:

No book can be released until a registration authority approves the title and series name, in order for no conflicts to occur, at great cost to the author. Most likely imposed by government law to sort out the mess.
Or

An author will need a lawyer to advise on any given book or series name, to avoid being sued.
Or

Suing new authors who are unaware trademarks even exist will become the main game of established authors defending their trademarks.
Or

In 10 years time, the entire eBook market will implode because no-one can actually put a title on a book without infringing someone's trademark.


----------



## Becca Mills

TimothyEllis said:


> So here's where we end up:
> 
> No book can be released until a registration authority approves the title and series name, in order for no conflicts to occur, at great cost to the author. Most likely imposed by government law to sort out the mess.
> Or
> 
> An author will need a lawyer to advise on any given book or series name, to avoid being sued.
> Or
> 
> Suing new authors who are unaware trademarks even exist will become the main game of established authors defending their trademarks.
> Or
> 
> In 10 years time, the entire eBook market will implode because no-one can actually put a title on a book without infringing someone's trademark.


Not if we simply keep on top of these applications, IMO. Filing a letter of protest is pretty easy. It's free and you do not need to have a personal stake in the mark -- just a short, clear point about genericness or descriptiveness, and some evidence. But they need to arrive early. My understanding is that once a mark is published for opposition, the USPTO is less likely/unlikely to consider letters of protest.


----------



## Patty Jansen

TimothyEllis said:


> So here's where we end up:
> 
> No book can be released until a registration authority approves the title and series name, in order for no conflicts to occur, at great cost to the author. Most likely imposed by government law to sort out the mess.
> Or
> 
> An author will need a lawyer to advise on any given book or series name, to avoid being sued.
> Or
> 
> Suing new authors who are unaware trademarks even exist will become the main game of established authors defending their trademarks.
> Or
> 
> In 10 years time, the entire eBook market will implode because no-one can actually put a title on a book without infringing someone's trademark.


I cannot see what a trademark is meant to achieve for anyone except maybe the really really big brands (like Apple and Coca Cola).

In the medium term, everyone is going to be confused, and the trademark office is going to rake in the dough.

Then some people are going to get C&D notices, some of which they'll blissfully ignore (being overseas, not dependent on Amazon, etc.)

Some people are going to get sued.

The lawyers will win. Everyone else will lose. Note that having a trademark does NOT earn you money. It LOSES you money, like, big time.

This is where I suspect we'll end up:

Everyone is just ignoring the trademarks because 1. people don't know about them, 2. the trademark owners lack the means and/or funds to do anything about it.

The trademark office will win. The lawyers will win. Everyone will lose. Like, books, income and that most important thing: friends.

I cannot say how much I despise this new fad. Seriously, people, NO ONE WILL WIN, except lawyers.


----------



## RinG

I was under the impression Choose Your Own Adventure was already trademarked?

Warrior Cats makes sense to me. It's a very well known series of kids books, and when the name is mentioned, I immediately think of that series. It has brand recognition to protect.


----------



## Jan Hurst-Nicholson

TimothyEllis said:


> So here's where we end up:
> 
> No book can be released until a registration authority approves the title and series name, in order for no conflicts to occur, at great cost to the author. Most likely imposed by government law to sort out the mess.
> Or
> 
> An author will need a lawyer to advise on any given book or series name, to avoid being sued.
> Or
> 
> Suing new authors who are unaware trademarks even exist will become the main game of established authors defending their trademarks.
> Or
> 
> In 10 years time, the entire eBook market will implode because no-one can actually put a title on a book without infringing someone's trademark.


In other words - it will be a right cock-up.


----------



## jb1111

TimothyEllis said:


> So here's where we end up:
> 
> No book can be released until a registration authority approves the title and series name, in order for no conflicts to occur, at great cost to the author. Most likely imposed by government law to sort out the mess.
> Or
> 
> An author will need a lawyer to advise on any given book or series name, to avoid being sued.
> Or
> 
> Suing new authors who are unaware trademarks even exist will become the main game of established authors defending their trademarks.
> Or
> 
> In 10 years time, the entire eBook market will implode because no-one can actually put a title on a book without infringing someone's trademark.


Being that is seems the TM office can't even seem to find a prior use of a word subject to a TM-app, good luck on the efficiency of option #1. I mean, I believe they have people who are supposed to double-check such things; as part of the approval process.

Option #2 is probably advisable already in some categories. If I were a high rolling romance author, I would have an attorney available on retainer right now.

Option #3 is highly probable given what has already happened, and has been happening. As publishing gets more cutthroat, so will the tactics. In fact, this lawsuit we are discussing appears to be the first shot across the bow.

Option #4 is dependent on whether some enterprising author takes a case to the Supreme Court, on the basis that the proliferation of trademarks on common words and phrases have a chilling effect on free speech. And from viewing some of the TMed words, I think some of them, if applied, chill speech. Let's assume I _don't_ use "cocky" in my title, but it's all through my next book (should I write a romance book). Can I still be sued? Technically, if the TM survives, the answer is yes.

Freedom of Speech is one of the "fundamental" rights in the Bill of Rights, as it is expressly delineated. The Supreme Court of the United States looks at any potential infringement by government (and as a TM is a function of government, government is directly involved in the process) on free speech with a fairly large magnifying glass.


----------



## AltMe

Becca Mills said:


> The Destroyer


I just came across the audio of this book, and found its not even Space Opera.

The Destroyer is a ship class, widely using in war fiction, as well as Space Opera. A trademark on the word destroyer could end up preventing any SO or historical war author from being able to title a book or series using the word. Which is about as ridiculous as it gets.


----------



## 97251

Patty Jansen said:


> I cannot see what a trademark is meant to achieve for anyone except maybe the really really big brands (like Apple and Coca Cola).
> 
> The trademark office will win. The lawyers will win. Everyone will lose. Like, books, income and that most important thing: friends.
> 
> I cannot say how much I despise this new fad. Seriously, people, NO ONE WILL WIN, except lawyers.


My understanding is that those authors, including the cocky author, want to monopolize keywords. It's all about visibility and showing up on Zon. Right? Cause all it takes to be a successful author is to be the only one who shows up for a particular word search. 

The cocky author did write in a post that more people were going to TM words, that hers was just the first. I wouldn't be surprised if this is something that's going on in a group.

I agree that it backfires, and that it only causes legal expenses to the TMing authors, but I think TMing authors need a few more failures and losses to understand that.

In the medium, long term, I think we need to fight to forbid single words from being TMd in relation to books, for 2 reasons:

1 - For books, each and every word is descriptive. 
2 - English has only 80k words (not counting archaic words and others). People tend to use 5k in their speech, and 10k in writing. So let's say there are only 10k words used in book titles (few of them are genre specific, but let's ignore it). 1 million books are published every year. If only a small percentage of authors is allowed to register single words, say 100 single-word TMs per year, in one century there won't be words left. No words. We'll really need ISBNs. And it can affect big publishers too. They should be fighting this as well.

I also think that genre specific word combinations shouldn't be TMd.


----------



## AltMe

Day Leitao said:


> in one century there won't be words left. No words.


It wont take that long. Less than 10 years.
And if the first dozen or so all succeed, it might only take a year.


----------



## Jena H

Becca Mills said:


> Planet Express (https://twitter.com/cockybot/status/100607540175023308
> 
> Choose Your Own Adventure (https://twitter.com/cockybot/status/1006074372723838976)
> 
> Remember, Honor, Serve (https://twitter.com/cockybot/status/1004620599640010752)
> 
> Legends of Tomorrow (https://twitter.com/cockybot/status/1003904711643181056)
> 
> Doom Patrol (https://twitter.com/cockybot/status/1003904207076802560)
> 
> Black Lightning (https://twitter.com/cockybot/status/1003903702619443202)


I would think that some of these are already trademarked. Or at least prior use is too well-known.


----------



## Ann in Arlington

"Planet Express" is the name of the delivery company on Futurama, so that ship has sailed (pun intended).


----------



## Rick Gualtieri

Jena H said:


> I would think that some of these are already trademarked. Or at least prior use is too well-known.


Check out the owners of some of these, they're legit. i.e. Legends of Tomorrow lists DC Comics. So this probably just means they're moving the property to print.


----------



## Patty Jansen

Translation:

"We know the rules are a [weenie] and that [weenies] are trying to exploit them to be utter [weenies] to people who are just minding their own business, but we're going to help them, because LAW and because we'll charge you through the nose."

My faith that there is good in humanity was pretty low, but this does it.

_Edited. Drop me a PM if you have any questions. - Becca_


----------



## Rick Gualtieri

Patty Jansen said:


> Translation:
> 
> "We know the rules are a [weenie] and that [weenies] are trying to exploit them to be utter [weenies] to people who are just minding their own business, but we're going to help them, because LAW and because we'll charge you through the nose."
> 
> My faith that there is good in humanity was pretty low, but this does it.
> 
> _Edited. Drop me a PM if you have any questions. - Becca_


The USPTO is traditionally understaffed and underfunded. They're just doing their job. Don't blame them. Blame the lawmakers who have refused to consider trademark and patent reform.

Oh, and definitely blame the authors who are using this as a pathetic land grab to stifle competition. No system is perfect, but some people are always looking for loopholes to exploit.


----------



## Patty Jansen

Rick Gualtieri said:


> The USPTO is traditionally understaffed and underfunded. They're just doing their job. Don't blame them. Blame the lawmakers who have refused to consider trademark and patent reform.
> 
> Oh, and definitely blame the authors who are using this as a pathetic land grab to stifle competition. No system is perfect, but some people are always looking for loopholes to exploit.


Well, then, that infuriates me even more.

_Edited. PM me if you have any questions. --Betsy/KB Mod_


----------



## Patty Jansen

Puddleduck said:


> I really get the feeling that this will have to be challenged in the Supreme Court as a freedom of speech issue before we'll see any real protection/change. And things will get much, much worse between now and then. (I hope I'm wrong.)


I actually suspect that we'll see a flurry of ridiculous registrations, some C&Ds and an odd court case, but soon enough these [several derogatory terms deleted] people will realise that trademarks don't make money. They only cost [crap]loads of money. And legal cases take [crap]loads of time and cost mental energy and anguish. And while they're doing all that rubbish, they're not doing the one thing that keeps bringing in the money: writing and managing their author business. Sure, some people do well, but the ones who both do exceedingly well and are willing to do all this ridiculous stuff and keep selling well will be few and far in between. Most writers I know who do well actually want to keep writing.

A few of these peeps may torpedo their own business by becoming overly focused on defending their trademark. Once everyone realises it costs them [crap]loads of money, they'll slink off into a corner and think of the next scheme or fad.


----------



## jb1111

Some free speech advocate with deep enough pockets, eventually, will fight it in Federal court. And they will probably win.

Many, if not most of the Cockybot TM apps I've seen are quite generic.

Some of the TMs seem a bit broad. Faleena's is limited to a series of romance books. But some of the other ones I've seen cover any books, any eBooks, any published material. Now whether some regulation trumps that, I wouldn't know. But these descriptions are on the documents, and some of them have gotten approved that way. Scary.


----------



## 97251

Puddleduck said:


> What you are asking for is that an exception be carved out for books. *This would require a statutory amendment,* which you seem to acknowledge in your email. However, it is not clear what the basis of the refusal would be. For example, unless the word is truly descriptive of the subject matter of the series of books (rather than merely suggestive, which is permissible), what would be the ground for refusal?
> 
> TMFeedback Support Team[/i]


I think that's the point. The issue is how to achieve an amendment.

The justification would be that, for books, all words are descriptive, especially adjectives. Other words can be descriptive as well, and relate to the content of the book.

Another justification would be based on the number of words vs. potential number of TMs if this is allowed, considering the amount of authors and books, and the facts that titles are made of words.


----------



## David VanDyke

Patty Jansen said:


> A few of these peeps may torpedo their own business by becoming overly focused on defending their trademark. Once everyone realises it costs them [crap]loads of money, they'll slink off into a corner and think of the next scheme or fad.


I wish that were true, but people often aren't rational and business-oriented, especially about things close to their heart i.e, things they've created. Authors are people and so they fall into this camp. They often spend a lot of time and energy on diversions that don't forward their career, their sales or their craft. So, I don't think we can depend on rational thinking to solve the problem. People use the legal system against each other all the time with the sole goal of hurting someone who's offended them, rather than protecting their business.


----------



## Betsy the Quilter

Folks, I'm going to read through, but there seems to be a bit of politics creeping in here.  Let's keep away from that, OK?  Posts may be edited...

Betsy
KB Mod


----------



## Guest

Actually, he DID answer the question. He explicitly said that a single book title cannot be trademarked. Only the SERIES.

So if she wants to call her SERIES the Cocky SERIES, that is fine. But that SERIES has nothing to do with individual TITLES. It would only be triggered if someone tried to create a SERIES with the word cocky in the name. The issue in this case is not the mark itself. The issue is that she is attempting to use the SERIES mark to stop INDIVIDUAL TITLES.


----------



## Becca Mills

Wow, Puddleduck ... I'm impressed with both your letter and with the USPTO's response. That response is what it looks like when an actual person thinks about and answers a complex customer-service complaint. The difference between that and the kinds of responses we get from KDP is pretty glaring, isn't it? 

That said, I think the person who responded to you is incorrect. IANAL, but speaking as an individual reader, I don't think "cocky" is arbitrary vis-a-vis Hopkins's books in the way "apple" is arbitrary vis-a-vis computers. I read the first in Hopkins's series -- not really my genre, but I wanted to know what her books were like -- and "cocky" seems to me to describe the character of the hero very specifically. He's a hot, successful guy who knows he's hot and successful, knows he has no difficulty attracting women, and wears that seemingly unassailable confidence (which the heroine eventually shakes, of course) on his sleeve. He's definitely cocky. "Proud" and "arrogant" would be too strong, as he's nice and doesn't take himself _that_ seriously. "Cocky" is pretty much the perfect descriptor for him. Also, near the beginning of the book, he exposes himself to the heroine for some minutes. There's extended discussion of his _ahem_ between the the two characters and in the narration. The obvious naughty pun contained within "cocky" makes the word doubly not arbitrary. So the book is quite clearly about a _cocky_ guy -- cocky in terms of external show of confidence, and cocky in terms of his focus on that part of his own body. As a reader, I felt like these were two of the character's outstanding features. The word seems to me so very, _very_ not arbitrary. It'd be more like Apple had named itself "Digital" and tried to trademark that. I have trouble seeing how the USTPO doesn't realize that the word "cocky" describes a key personality trait of the kind of unassailably confident, highly sexual alpha-male hero Hopkins created in that book, which many other romances also create -- the character type is common in the genre.

Moreover, the larger issue you raise, which may be beyond the scope of the USTPO to deal with, seems very important to me: Words aren't just marketable brand symbols, when it comes to books. I mean, books are _made of words_ in the way 409 is made of ammonia and other stuff, and Apple devices are made of silicon and so forth. Words are books' very substance. When you trademark a word in books, it's like making a particular chemical unavailable for formulating all future cleaning fluids, or making a particular mineral unavailable for constructing all future laptops. Therefore, the bar should be higher when it comes to trademarking words in the area of books, IMO. There needs to be some recognition that books are 100% made of potentially trademarkable symbols in ways other products aren't, and that more care should thus be taken before book-related trademarks are granted.


----------



## jb1111

What the TM office said is hopeful. I did a search and found this:
https://www.bitlaw.com/source/tmep/1202_08.html

One thing it mentions:
"The title, or a portion of a title, of a single creative work must be refused registration under §§1, 2, and 45 of the Trademark Act, 15 U.S.C. §§1051, 1052, and 1127, *unless the title has been used on a series of creative works.*"

It goes on a bit further about single book titles not being eligible for TMs.

Which makes me wonder if someone could use the word "cocky" in a book title if it's *not* claiming to be in a "cocky" series?


----------



## Becca Mills

Bards and Sages (Julie) said:


> Actually, he DID answer the question. He explicitly said that a single book title cannot be trademarked. Only the SERIES.
> 
> So if she wants to call her SERIES the Cocky SERIES, that is fine. But that SERIES has nothing to do with individual TITLES. It would only be triggered if someone tried to create a SERIES with the word cocky in the name. The issue in this case is not the mark itself. The issue is that she is attempting to use the SERIES mark to stop INDIVIDUAL TITLES.


I'm not sure the above is true, Julie. I think that if you title an individual book in such a way that someone might arguably misperceive it as being part of the trademarked series, the trademark holder might sue you. If I published a standalone book and titled it _Star Wars_, I have a feeling I'd hear from Disney, and the fact that I didn't use "Star Wars" as a series title won't make a wit of difference to them. Maybe they'd lose in court -- I don't know. But even if I won, I'd have to spend a lot of money getting there. We can see that happening now with the _Cocktales_ anthology. There's no series title in play with that book, but Hopkins is still arguing that there's infringement.


----------



## Rose Andrews

Bards and Sages (Julie) said:


> Actually, he DID answer the question. He explicitly said that a single book title cannot be trademarked. Only the SERIES.
> 
> So if she wants to call her SERIES the Cocky SERIES, that is fine. But that SERIES has nothing to do with individual TITLES. It would only be triggered if someone tried to create a SERIES with the word cocky in the name. The issue in this case is not the mark itself. The issue is that she is attempting to use the SERIES mark to stop INDIVIDUAL TITLES.


This is pretty much what I understand as well. That being said, the other trademarks being filed, I assume, are for series names (like Warrior Cats, which is an awesome series btw). So doesn't that make it self-explanatory? Given what the trademark office wrote in their letter, isn't it then not within the scope of the trademark to sue authors with those words in their titles? How can she, or any other author, pursue royalties for titles when the trademark only applies to the series? The answer seems pretty straightforward and legit then.


----------



## Rose Andrews

Becca Mills said:


> I'm not sure the above is true, Julie. I think that if you title an individual book in such a way that someone might arguably misperceive it as being part of the trademarked series, the trademark holder might sue you. If I published a standalone book and titled it _Star Wars_, I have a feeling I'd hear from Disney, and the fact that I didn't use "Star Wars" as a series title won't make a wit of difference to them. Maybe they'd lose in court -- I don't know. But even if I won, I'd have to spend a lot of money getting there. We can see that happening now with the _Cocktales_ anthology. There's no series title in play with that book, but Hopkins is still arguing that there's infringement.


But wait a minute: a single title of cocky, without the series name attached to it, and a different author name, is enough to clarify to readers that it is not part of the same series. The response makes sense to me. If another author were to title their book Cocky X AND attach Cocky Series bla bla bla...then that would be a violation of her trademark. A single title is not that.

Taking Apple as an example: if another company that sells electronics/digital widgets were to come along and COMPETE in the same marketplace with the name Apple, that would be a violation of Apple's trademark.

**The whole point about not allowing single title trademarks is to allow freedom for other authors to compete. Trademarking a single word used to describe a TROPE is preventing other authors from fairly competing in the erotic romance category marketplace. Isn't that business law 101 right there? The whole thing about monopolies?**


----------



## Becca Mills

kw3000 said:


> Exactly. This is the key point the USTPO needs to understand. It is abhorrent to grant one glass maker a trademark on sand and telling all other glass makers if they have a problem with it to lawyer up. Do they not realize the damage and chaos this will cause or do they just not care because 'not my department'?


I think words are weird. They're both concrete entities in their own right and symbols intended point to other entities without calling attention to themselves. Sometimes those two facets come into conflict in strange ways. I suspect lawmakers and the folks at the USPTO just haven't thought through the weirdness. It's a little too Derrida for the real world, you know?


----------



## Becca Mills

Rose Andrews said:


> But wait a minute: a single title of cocky, without the series name attached to it, and a different author name, is enough to clarify to readers that it is not part of the same series. The response makes sense to me. If another author were to title their book Cocky X AND attach Cocky Series bla bla bla...then that would be a violation of her trademark. A single title is not that.
> 
> Taking Apple as an example: if another company that sells electronics/digital widgets were to come along and COMPETE in the same marketplace with the name Apple, that would be a violation of Apple's trademark.
> 
> **The whole point about not allowing single title trademarks is to allow freedom for other authors to compete. Trademarking a single word used to describe a TROPE is preventing other authors from fairly competing in the erotic romance category marketplace. Isn't that business law 101 right there? The whole thing about monopolies?**


A court might find that "a single title of cocky, without the series name attached to it, and a different author name, is enough to clarify to readers that it is not part of the same series" ... I just don't know. But if you get sued, you have to pony up at least that $5,000 to $10,000 attorney's retainer in order to get to the point where the court finds in your favor. Getting sued is pretty significant, even if you win.

I really don't know enough about this stuff to know where the line is, but I have trouble believing it's easy to get away with using a strong trademark in a standalone book title. The trademark will only be granted if it's used in a series title, but does that mean only series titles can infringe trademarks? I suspect not.


----------



## Guest

Becca Mills said:


> I'm not sure the above is true, *****. I think that if you title an individual book in such a way that someone might arguably misperceive it as being part of the trademarked series, the trademark holder might sue you. If I published a standalone book and titled it _Star Wars_, I have a feeling I'd hear from Disney, and the fact that I didn't use "Star Wars" as a series title won't make a wit of difference to them.


First, don't confuse the fact that anyone can sue anyone for anything in civil court with what the actual law says. People sue as a bully tactic, even when they don't have a leg to stand on. Because it is often cheaper to settle out of court than to defend in civil court. That is a problem with civil courts, not the actual law itself. This country needs a great overhaul of the entire civil court system to make it more equitable. Namely, holding the attorneys responsible for too many frivolous lawsuits and possible loss of their licenses would clean up the courts real quick. Because attorneys are the ones often encouraging their clients to file.

Second, the Mouse is inherently evil and sue-happy, regardless of what the actual law says. Disney has a nasty habit of suing people even when people are 100% within their rights to do something. For example. Disney has been known to send DMCA take-down notices to websites that feature PICTURES of toys PEOPLE BOUGHT. Think about that. People buy an item, take a picture of it and post it. And Disney sends a take-down notice citing a copyright violation. There is NOTHING in copyright law that justifies this action. But Disney has done it. So using Disney's actions as evidence of how the law should be interpreted is wrong on its face.

Third, what people identify as Star Wars is directly tied to a very specific fictional universe. You could most definitely title your tell-all book detailing feuds between Hollywood actors "Star Wars" and it would be completely appropriate and legal, because you are in no way infringing on the trademark of the SW franchise, which is tied to the FICTIONAL UNIVERSE. Now if you tried to call you space opera series Star Wars, you might have some serious problems. The thing about a trademark is that it must be associated with something specific that serves as the "noun" for generic use. Again, the fact that Disney might sue anyway isn't relevant to the actual law.

Apple is a trademark for a type of computer. But there is also an Apple School Supply which exists outside the Apple company. There is also an Apple cosmetics. Apple Paints. etc etc. Apple computers can't really do anything about any of those companies, because they exist outside the scope of their own trademarks.


----------



## Rose Andrews

Becca Mills said:


> I really don't know enough about this stuff to know where the line is, but I have trouble believing it's easy to get away with using a strong trademark in a standalone book title. The trademark will only be granted if it's used in a series title, but does that mean only series titles can infringe trademarks? I suspect not.


We'll find out for sure once this whole thing is settled.  But my understanding of it is that other authors would be prevented from fairly competing against FH if such a trademark were to be upheld (and I'm specifically referring to the single titles, not the series name as has already been established is trademark-able.


----------



## Becca Mills

Bards and Sages (Julie) said:


> First, don't confuse the fact that anyone can sue anyone for anything in civil court with what the actual law says. People sue as a bully tactic, even when they don't have a leg to stand on. Because it is often cheaper to settle out of court than to defend in civil court. That is a problem with civil courts, not the actual law itself. This country needs a great overhaul of the entire civil court system to make it more equitable. Namely, holding the attorneys responsible for too many frivolous lawsuits and possible loss of their licenses would clean up the courts real quick. Because attorneys are the ones often encouraging their clients to file.
> 
> Second, the Mouse is inherently evil and sue-happy, regardless of what the actual law says. Disney has a nasty habit of suing people even when people are 100% within their rights to do something. For example. Disney has been known to send DMCA take-down notices to websites that feature PICTURES of toys PEOPLE BOUGHT. Think about that. People buy an item, take a picture of it and post it. And Disney sends a take-down notice citing a copyright violation. There is NOTHING in copyright law that justifies this action. But Disney has done it. So using Disney's actions as evidence of how the law should be interpreted is wrong on its face.
> 
> Third, what people identify as Star Wars is directly tied to a very specific fictional universe. You could most definitely title your tell-all book detailing feuds between Hollywood actors "Star Wars" and it would be completely appropriate and legal, because you are in no way infringing on the trademark of the SW franchise, which is tied to the FICTIONAL UNIVERSE. Now if you tried to call you space opera series Star Wars, you might have some serious problems. The thing about a trademark is that it must be associated with something specific that serves as the "noun" for generic use. Again, the fact that Disney might sue anyway isn't relevant to the actual law.
> 
> Apple is a trademark for a type of computer. But there is also an Apple School Supply which exists outside the Apple company. There is also an Apple cosmetics. Apple Paints. etc etc. Apple computers can't really do anything about any of those companies, because they exist outside the scope of their own trademarks.


Right. The whole thing with "cocky" is happen within romance, so the analogical equivalent is my naming my sci-fi novel (maybe space opera, maybe a nearby subgenre) _Star Wars_. I do think even a less aggressive TM defender than Disney would likely be all over that. I'm not sure they'd lose, and even if they did lose, it'd be expensive for the winner.

I agree about the legal system in general, but that's a mega-problem. The piece of the puzzle that we can actually tackle now is reducing ordinary-word trademarking in reference to books. An unethical lawyer may push a client to sue when they really shouldn't, but such pressure is a lot less likely if no trademark has been granted. That's where we can most easily intervene, IMO.


----------



## Rick Gualtieri

Becca Mills said:


> An unethical lawyer may push a client to sue when they really shouldn't, but such pressure is a lot less likely if no trademark has been granted. That's where we can most easily intervene, IMO.


Yeah, it seems to be a case of the longer you wait, the more expensive this gets ... so best to hit them early on, before they can leave the nest.


----------



## Becca Mills

Puddleduck said:


> Yes, this is a real problem. I think it may partially come from the fact that they're likely used to dealing with large corporations where court costs are a reasonable cost of doing business. When you're dealing with large companies who you know have the money to fight something in court, it's easy to say, "If you don't like it, get a lawyer and have them go through the legal process." But as individuals, most of us (even reasonably well-off middle class types) don't have that kind of money. Getting sued would put a lot of us in dire enough financial straits that we couldn't really even afford to get to the point of a judge finding in our favor. I have a lawyer cousin whose common response to disagreements about what companies/people/public entities should be doing is, "That's what the courts are for." Which I always find strange, since she (as a lawyer) knows what lawyers cost and probably knows much better than me how unethical some lawyers can be (encouraging frivolous lawsuits, for example). And if you can't afford to respond to the suit or can't afford to carry it through to the end (since these things can go on forever), it's as good as if you've lost--so it doesn't matter if the person suing you was in the right or not. And if you know that you can't afford to get sued and want to avoid it, the best you can do is try to avoid getting on the wrong person's bad side to begin with--which, if enough words get trademarked, means either giving your book a title like, "898347" and hoping readers will look at the cover image to see it's an urban fantasy instead of a thriller, or you get so afraid that you stop publishing entirely.


Your USPTO correspondent did note some words -- they cited "space" and "vampire" -- would be rejected as very obviously descriptive of books' contents, so that's good. The problem I see is that most books' and series' titles are, fundamentally, _descriptive_. We don't just randomly generate a string of words to use as a title. Or think, "I've always thought Martin Buber was pretty cool, so I'm going to name my MFM erotic romance _Martin_," or whatever. Series titles almost always describe the books' contents in some way. So before you grant a TM on one of them, and potentially restrict other writers' ability to describe their books' contents effectively, you should be sure the proposed mark is tightly focused. That's the measure I'd like to see used, anyway. Perhaps the USPTO would agree but would define "tightly focused" differently than most authors would.


----------



## PermaStudent

Rick Gualtieri said:


> Yeah, it seems to be a case of the longer you wait, the more expensive this gets ... so best to hit them early on, before they can leave the nest.


This is where my thoughts are, too. I tried to find a way to receive trademark notifications from USPTO, but it seems like they only offer a generic "trademark alerts" newsletter and not a "here is a new trademark that's been filed on (insert word here)". Does anyone know if I missed something? My plan B is to put google alerts on the twitter cockybot for each of the words in my titles/series and do my part to keep those words available for all.

I have no problem with people protecting their intellectual property. It's the land grab mentality that I disagree with.


----------



## Victoria Wright

Just chiming in to add the following, as I've seen several people making comments that suggest one couldn't use 'cocky' in any series title--if my following comment is wrong, please feel free to correct me:

Should FH's trademark to 'cocky' be upheld, my understanding is that it literally only means that no one else publishing a romance series can title that series 'cocky series'--I don't think it extends to forbidding anyone from using the term cocky in a longer series title. Now, obviously, FH has been overreaching her trademark, what with her filing takedowns and sending threatening letters to anyone who uses the term in a single book title and/or as part of their series title. BUT again, my understanding is simply that (if upheld) one could not have a series that was simply titled 'the cocky series'--whereas something like 'escapades of a cocky man series' or 'the cocky men series' would be permissible and would not impede upon her trademark of the term.

Again, if I'm mistaken, please feel free to correct me. I just wanted to add this point to the conversation, since I've seen it mentioned repeatedly.


----------



## Becca Mills

Victoria Wright said:


> Just chiming in to add the following, as I've seen several people making comments that suggest one couldn't use 'cocky' in any series title--if my following comment is wrong, please feel free to correct me:
> 
> Should FH's trademark to 'cocky' be upheld, my understanding is that it literally only means that no one else publishing a romance series can title that series 'cocky series'--I don't think it extends to forbidding anyone from using the term cocky in a longer series title. Now, obviously, FH has been overreaching her trademark, what with her filing takedowns and sending threatening letters to anyone who uses the term in a single book title and/or as part of their series title. BUT again, my understanding is simply that (if upheld) one could not have a series that was simply titled 'the cocky series'--whereas something like 'escapades of a cocky man series' or 'the cocky men series' would be permissible and would not impede upon her trademark of the term.
> 
> Again, if I'm mistaken, please feel free to correct me. I just wanted to add this point to the conversation, since I've seen it mentioned repeatedly.


I don't think that's correct, Victoria. As far as I can see from the USPTO database, she has three trademarks. One is for the word "cocky" in a particular cursive font (Ser. No. 8760496; one is for the word "cocky," with no restriction as to font (Ser. No. 8760434; and one is for "Cocker Brothers," with no restriction as to font (Ser. No. 87604351).

All three apply to the following goods and services: "A series of downloadable e-books in the field of romance" and "A series of books in the field of romance."

No one has trademarked the three-word phrase "The Cocky Series," so far as I can see.


----------



## AltMe

I came across the book called 'The Destroyer' quite by accident yesterday, which is one of those on the Trademark application list.

The book appears to be fantasy, and the cover suggests the destroyer is a person.

But, the word destroyer is a class of ship, which is extensively used in naval warfare stories, of which I'd be surprised to find there isn't already a book written in the 50's or 60's called that. So right there, we now have fantasy and historical warfare conflicts. But destroyer is also a class of spaceship, so it is also used by military sci-fi and Space Opera. And a lot of this also bleeds over into fantasy as well.

But here's another one: Kali is a Hindu Deity, who happens to have a full name of Kali The Destroyer. And since Kali is supernatural, this is fantasy again. So if 'the destroyer' is trademarked, this disallows 'Kali the destroyer', when the latter goes back hundreds of years. 


And again, 'the destroyer' is so generic, you can put almost anything on the front of it, or even after it (eg. the destroyer of worlds), and then in the middle of it (The Lost Destroyer is already a book name), that suddenly all usage is in doubt.

I dont think the Trademark office understands what is coming. If these dozen or so applications all succeed, they will be hit by tens of thousands of series name applications from every author with series names, and when those are successful, they will be followed by hundreds of thousands as authors put in a trademark application for every book 1, in order to be able to claim trademark pending when the disist notices start coming in.

They dont appear to be able to cope with the few they have now. They also have no idea 1000's of new books in 100's of series are uploaded every day, and this is accelerating. If this wasn't enough of a problem for their office, by the time it gets to this, every single person in their office will spend every day in court justifying why they granted it, resulting in no new applications ever being processed. The entire trademark system will grind to a complete halt.

I think one of you doing submissions needs to do some statistics on how many series names there are already, and present it in a way which tells them what is coming when the few they have now are all granted. Because if they are granted, then every author who is active will be putting in an application for every series name they have. We wont be able to afford not to.

This whole thing is insane.


----------



## Elizabeth S.

Victoria Wright said:


> Just chiming in to add the following, as I've seen several people making comments that suggest one couldn't use 'cocky' in any series title--if my following comment is wrong, please feel free to correct me:
> 
> Should FH's trademark to 'cocky' be upheld, my understanding is that it literally only means that no one else publishing a romance series can title that series 'cocky series'--I don't think it extends to forbidding anyone from using the term cocky in a longer series title. Now, obviously, FH has been overreaching her trademark, what with her filing takedowns and sending threatening letters to anyone who uses the term in a single book title and/or as part of their series title. BUT again, my understanding is simply that (if upheld) one could not have a series that was simply titled 'the cocky series'--whereas something like 'escapades of a cocky man series' or 'the cocky men series' would be permissible and would not impede upon her trademark of the term.
> 
> Again, if I'm mistaken, please feel free to correct me. I just wanted to add this point to the conversation, since I've seen it mentioned repeatedly.


Here's the problem: if the TM is upheld, authors can't use "cocky" in their keywords either. That is a huge blow for discoverability and is why the word was TMed in the first place, imo. Not just to keep authors from titling their books or series with "cocky" but to keep competing titles from showing up when readers search for things like "cocky hero."


----------



## jb1111

Bards and Sages (Julie) said:


> First, don't confuse the fact that anyone can sue anyone for anything in civil court with what the actual law says. People sue as a bully tactic, even when they don't have a leg to stand on. Because it is often cheaper to settle out of court than to defend in civil court. That is a problem with civil courts, not the actual law itself. This country needs a great overhaul of the entire civil court system to make it more equitable. Namely, holding the attorneys responsible for too many frivolous lawsuits and possible loss of their licenses would clean up the courts real quick. Because attorneys are the ones often encouraging their clients to file.


A lot of people think attorneys are always pushing civil litigation, when often it is the client who is doing the pushing. An attorney can't sue without the client's approval. The client is ultimately the boss. In the Disney cases you cited, I would hazard a guess that the attorneys were just doing their job, taking orders from their client.

That said, I think we may be seeing more litigation of this type until it eventually sorts out. There is apparently a lot of big money in romance and a few other genres, and where there is big money, there are also big interests to be protected.

I don't know how much of this TM litigation and the like went on before indie eBook publishing, but it sure seems to be looking at us from the horizon right now, especially with all these TM filings.


----------



## AltMe

Lilly_Frost said:


> Conan the Destroyer would not approve that TM application. Neither would the famous-in-his-day wrestler, The Destroyer.


That's true. Assuming they see it in time to counter it.


----------



## Rick Gualtieri

TimothyEllis said:


> That's true. Assuming they see it in time to counter it.


If you check twitter, there's an effort going on to get letters of protest in on all of these.


----------



## AltMe

Rick Gualtieri said:


> If you check twitter, there's an effort going on to get letters of protest in on all of these.


Moi, does not twit. 

But glad to know something is happening.


----------



## going going gone

TimothyEllis said:


> I came across the book called 'The Destroyer' quite by accident yesterday, which is one of those on the Trademark application list.
> 
> The book appears to be fantasy, and the cover suggests the destroyer is a person.
> This whole thing is insane.


I actually contacted the estate of Warren Murphy, whose series "The Destroyer" began in 1971. I've read a few. (over-the-top guy adventure lit, tongue-in-cheek about it, pretty fun). If anyone has claim to the title in books, it's that estate. I do hope they see my note and move on it, as they have great standing to challenge.

This particular case didn't limit the claim to fantasy. all fiction. The same person has claimed a TM for another simple term for movies, fiction, toys, this, that, and kitchen sinks (well maybe not those).

It's not insane. It's calculated and obnoxious.


----------



## Becca Mills

cadle-sparks said:


> I actually contacted the estate of Warren Murphy, whose series "The Destroyer" began in 1971. I've read a few. (over-the-top guy adventure lit, tongue-in-cheek about it, pretty fun). If anyone has claim to the title in books, it's that estate. I do hope they see my note and move on it, as they have great standing to challenge.
> 
> This particular case didn't limit the claim to fantasy. all fiction. The same person has claimed a TM for another simple term for movies, fiction, toys, this, that, and kitchen sinks (well maybe not those).
> 
> It's not insane. It's calculated and obnoxious.


Contacting Murphy's estate was a great idea. 

Just to be clear, though, one does not need to have standing to file a letter of protest. That process is free and open to anyone. Anyone could file a LoP on "The Destroyer" citing Murphy's books (and others) as evidence that the phrase has been in use for decades in fiction series titles because it's descriptive of series in which someone is, you know, _destructive_. Or in which a destroyer-class vessel plays a prominent role? That might be out there too.

Once the mark is approved and you get into the formal opposition process, then you do need to show standing, I think.


----------



## going going gone

Becca Mills said:


> Contacting Murphy's estate was a great idea.
> 
> Just to be clear, though, one does not need to have standing to file a letter of protest. That process is free and open to anyone. Anyone could file a LoP on "The Destroyer" citing Murphy's books (and others) as evidence that the phrase has been in use for decades in fiction series titles because it's descriptive of series in which someone is, you know, _destructive_. Or in which a destroyer-class vessel plays a prominent role? That might be out there too.
> 
> Once the mark is approved and you get into the formal opposition process, then you do need to show standing, I think.


Thanks for that info, Becca. I hunted for a while for a clear blog post on where to go to file, but couldn't find one, and some of the people involved in #cockygate tweet too danged much to find info on their timelines, and I haven't read all 30 pages of this thread, but I'd surely like clear instructions. When I'm done for my work day, I'm happy to write to the USPTO about this nonsense while I eat lunch. Nip this stuff in the bud.


----------



## Rick Gualtieri

cadle-sparks said:


> Thanks for that info, Becca. I hunted for a while for a clear blog post on where to go to file, but couldn't find one, and some of the people involved in #cockygate tweet too danged much to find info on their timelines, and I haven't read all 30 pages of this thread, but I'd surely like clear instructions. When I'm done for my work day, I'm happy to write to the USPTO about this nonsense while I eat lunch. Nip this stuff in the bud.


Not sure if we can share the link or not, but if you google USPTO letter of protest, you'll find the site with instructions. It's actually pretty easy. Do your research first, grab screenshots of prior art etc. Then it takes maybe 5 or 10 minutes to fill out everything and submit.


----------



## Becca Mills

Here's some info from upthread on filing letters of protest:

http://www.kboards.com/index.php/topic,263084.msg3668065.html#msg3668065 (the form, Kevin Kneupper's tweetstorm directions)

http://www.kboards.com/index.php/topic,263084.msg3668148.html#msg3668148 (my attempt to collate Kneupper's directions, for those who find Twitter challenging, as I do)

I filed one a while back. Rick's right -- it doesn't take long. For me, by far the most time-consuming part was trimming my identifying info off the screenshots, which I wouldn't have needed to do if I'd just logged off Amazon before taking them. Tripple duh.


----------



## Rick Gualtieri

Becca Mills said:


> I filed one a while back. Rick's right -- it doesn't take long. For me, by far the most time-consuming part was trimming my identifying info off the screenshots, which I wouldn't have needed to do if I'd just logged off Amazon before taking them. Tripple duh.


Goodreads is a good place for screenshots too. Also less PII there.


----------



## going going gone

Rick Gualtieri said:


> Not sure if we can share the link or not, but if you google USPTO letter of protest, you'll find the site with instructions. It's actually pretty easy. Do your research first, grab screenshots of prior art etc. Then it takes maybe 5 or 10 minutes to fill out everything and submit.


thanks, Rick.


----------



## Nick Marsden

This trademark is being challenged and will probably be removed:

From the OP's link:
A cancellation proceeding is pending at the Trademark Trial and Appeal Board. For further information, see TTABVUE on the Trademark Trial and Appeal Board web page.


----------



## AltMe

Becca Mills said:


> Here's some info from upthread on filing letters of protest:


Can you add that and any other appropriate links to the first post, so they can be found easily?

The first post is probably not read much anymore, but the top of it probably should be where all the pertinent info is put so it doesn't get lost. Only the OP or a mod can do this. But in this case, its worth doing. The more people who can find it easily, the better.


----------



## going going gone

This morning's facepalm addition

Big

(Title of fiction, single novel or series)


----------



## Ros_Jackson

The "Big" application is way too broad: a series of fiction and non-fiction books. Not even any mention of genre.

https://tsdr.uspto.gov/#caseNumber=87959377&caseType=SERIAL_NO&searchType=statusSearch


----------



## C. Gockel

Ros_Jackson said:


> The "Big" application is way too broad: a series of fiction and non-fiction books. Not even any mention of genre.
> 
> https://tsdr.uspto.gov/#caseNumber=87959377&caseType=SERIAL_NO&searchType=statusSearch


Which doesn't mean it won't be granted--as we've seen. http://www.humanoids.com/ is the one applying for the TM. 
https://tsdr.uspto.gov/documentviewer?caseId=sn87959377&docId=RFA20180615083627#docIndex=0&page=1

Maybe the RWA could get involved?


----------



## Jan Hurst-Nicholson

What are the trad publishers doing about this?


----------



## Becca Mills

I've been futzing around with Amazon searches, and I think I got the site to generate a list of all the series titles containing the word "big" in the Kindle store. Do y'all think this number of series seems about right, or does it look like too few? Anyone know of a series title that includes "big" that's not showing up here?


----------



## Rose Andrews

Ridiculous.


----------



## Alan Petersen

cadle-sparks said:


> This morning's facepalm addition
> 
> Big
> 
> (Title of fiction, single novel or series)


I'm starting to think peeps are now applying for ridiculous trademarks just to get a reaction of everyone since they know folks are checking the database 24/7 now.

Sent from my iPhone using Tapatalk


----------



## ........

Alan Petersen said:


> I'm starting to think peeps are now applying for ridiculous trademarks just to get a reaction of everyone since they know folks are checking the database 24/7 now.
> 
> Sent from my iPhone using Tapatalk


I've been thinking we need to start flooding applications to demonstrate just how broken the system is. We need every popular single word trademark. Find someone with cozy witch or military sci-fi and go for those trademarks.

At $225 an application it's affordable.

Then we see a bunch of approved applications or the trademark Office starts checking Ebook category notices more carefully.


----------



## Jan Hurst-Nicholson

I think we should try a trademark for *THE* in a title and a series. 

I've got two titles with THE so I can claim prior use


----------



## MyCatDoesNotConsent

@#!%
Я не согласен с новым TOS


----------



## ImaWriter

cadle-sparks said:


> Big


I was thinking "Shoot, there goes my plans of titling something "Big Cocky." Then I thought, "I bet someone already has!" And guess what, someone already has used the title Big Cocky... Although Amazon has a rank for it, there is no publication date. Is that normal for KU?


----------



## unkownwriter

The moon must be retrograde about now. Only event that explains people spending money to attempt trademarks on things they aren't going to get. For "big", someone just needs to file a protest and send that screen cap from above. Should be denied immediately. Of course, the trademark office should be doing this work not us. I don't care how backlogged they are, it's their blasted job.


----------



## ........

she-la-ti-da said:


> The moon must be retrograde about now. Only event that explains people spending money to attempt trademarks on things they aren't going to get. For "big", someone just needs to file a protest and send that screen cap from above. Should be denied immediately. Of course, the trademark office should be doing this work not us. I don't care how backlogged they are, it's their blasted job.


My understanding of the trademark office is that it's *not* their job. Their job is to process applications. They rely on the applications being true and the person making them telling the truth.

This is all well and good if there are serious penalties for not telling the truth but there aren't.

I'm not really sure what leeway an examiner at the office really has when a trademark like Big or Dragon Slayer comes across their desk. They may personally know there is prior art but if the application says there isn't and they swear it... maybe they're bound by that.

Does really seem as though there is room for a new job that is essentially "Use Google for ten minutes please" on applications.


----------



## unkownwriter

> how much infringing there is with the infringing WORD becoming merely part of a larger descriptive PHRASE


And therein lies the entire problem, I think. There's just going to be so much usage of simple words (Big as opposed to Big Something-or-Other Unique or cocky instead of the recognizable The Cocker Brothers of Atlanta) that unless a writer has deep pockets or a free attorney -- or the time and standing in court themselves -- their lives are going to be an endless stream of "OMG, somebody just used my word!". Where does the writing come in? I suspect for some, there's an idea that they can claim lots of money from writers using their word, when in truth 90% of them don't have two nickles to play tickle together, so there goes legal fees and time invested for zero return.

But, there's always a scheme going on. It's been this way forever, with some genius thinking of ways to make money with no effort and everybody falling over themselves to copy it, whether it works or not. There's money is selling the dream. Sadly, quite a few people think writing and publishing is their easy ticket, while others find ways to scam their way to the mother lode.


----------



## Used To Be BH

........ said:


> My understanding of the trademark office is that it's *not* their job. Their job is to process applications. They rely on the applications being true and the person making them telling the truth.
> 
> This is all well and good if there are serious penalties for not telling the truth but there aren't.
> 
> I'm not really sure what leeway an examiner at the office really has when a trademark like Big or Dragon Slayer comes across their desk. They may personally know there is prior art but if the application says there isn't and they swear it... maybe they're bound by that.
> 
> Does really seem as though there is room for a new job that is essentially "Use Google for ten minutes please" on applications.


Has anyone actually read the relevant law? What you say is possible, but I would have thought part of processing an application would have been to verify its accuracy. Of course, the law could predate the Internet, but now five or ten minutes of searching would suffice to verify that many people are already using the word or phrase in question in the same context. Determining that prior use exists would be much easier than it was just a few years ago.

What government process relies entirely on people be truthful and not subjecting their information to any kind of validation? Offhand, I can't think of one in which the bureaucrats involved couldn't at least question something that looked fishy. Maybe the problem is not so much that the law prohibits trademark office employees from validating applications as that they don't know how to check on book series titles in a convenient way.


----------



## Guest

Lynn Is A Pseudonym said:


> That's a couple of tickets to a concert, and potentially, much more entertaining. And the payoff if accepted/allowed? Priceless.


Keep in mind that is PER CLASS of goods. And, if you look carefully at the official list of classes, "books" isn't a blanket class. "Downloadable series of fiction books" does not also include "series of fiction books" (physical products, not downloadable), or audiobooks. So to cover all three classes, you have to pay for each class. And the $225 fee also has the toughest requirements to file, and the majority of people would need an attorney to help with that. So you have to add in the cost of attorney fees for the filing.


----------



## Guest

Bill Hiatt said:


> Has anyone actually read the relevant law? What you say is possible, but I would have thought part of processing an application would have been to verify its accuracy.


Welcome to the government! Having had the displeasure of dealing with multiple government agencies over the years (DOT, FAA, FDA, OSHA, etc) YES, it is assumed that you are in fact submitting factual and accurate information when you file any government form. It is not the job of the person processing the application to verify it. There job is only to make sure it is done correctly and the info matches existing records. It is only when there is an audit (either because something got kicked back or because someone logged a complaint), that the original paperwork is looked at carefully.

See, it is actually rather brilliant. Because if you knowingly file a false application, then the government can use that against you if something happens later. Oh, one of your employees shipped a hazardous material from your location and it caused an explosion in transit? Well, your Life Hazard Use Fee application didn't indicate that your location HAD hazardous materials. We just doubled your fine for falsifying documents.

Or, hey, your employee just filed a Worker's Comp claim due to an injury at work. He is still out of work two weeks later, but your OSHA Form 300 incident report said he only missed ONE day and then went on light duty? We just tripled your fines for falsifying reports. And your Worker's Comp insurance rates are probably going up, too.

Now in the case of trademark filings, it could take a long time for anything to catch up. But, let's say, the same attorney files twenty trademark applications that all get challenged. THAT is going to grab someone's attention and get them digging.

Because the other problem is, despite claims to the contrary, most government agencies are incredibly UNDERSTAFFED. They are top heavy with appointees and such, but the actual grunts in the trenches? Significantly understaffed. So there is simply no time to examine each document that comes in. In order to get ANYTHING done, you have to work from an assumption that the information is correct, and then the penalties hit on the back end when it comes out that they weren't.


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## Rick Gualtieri

KateDanley said:


> Trademark filing is the new ambulance chasing. The person who filed this appears to be a lawyer, which means he's got nothing but time on his hands to start filing lawsuits.


Fools and their money....


----------



## Alan Petersen

KateDanley said:


> Trademark filing is the new ambulance chasing. The person who filed this appears to be a lawyer, which means he's got nothing but time on his hands to start filing lawsuits.


 I worked for a medical device company ten years ago and they were lawyers that did a similar thing with patents and some of these peeps had checks cut for 100-300K per month in royalties because they patented an idea. It was an interesting business model. They partnered with a doctor to come up with ideas in the hopes that someday a company would come up with it too and spend millions of dollars developing but they filed the idea first so they get paid. Some of these were very generic ideas like put transmitter chip in a pacemaker. I know it's different than filing a trademark for "big" but still patent/trademark/copyright trolling is big business. Crazy.


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## Anarchist

Alan Petersen said:


> I worked for a medical device company ten years ago and they were lawyers that did a similar thing with patents and some of these peeps had checks cut for 100-300K per month in royalties because they patented an idea. It was an interesting business model. They partnered with a doctor to come up with ideas in the hopes that someday a company would come up with it too and spend millions of dollars developing but they filed the idea first so they get paid. Some of these were very generic ideas like put transmitter chip in a pacemaker. I know it's different than filing a trademark for "big" but still patent/trademark/copyright trolling is big business. Crazy.


Patent license fees are a big thing in mobile. I remember this image from years ago...










When cockygate first gained momentum, I thought the patent holders were going to use them as a revenue source (i.e. sue patent infringers and lock down license fees).


----------



## AltMe

Bill Hiatt said:


> Has anyone actually read the relevant law? What you say is possible, but I would have thought part of processing an application would have been to verify its accuracy. Of course, the law could predate the Internet,


Didn't I see 1947 earlier in the thread? Almost predates typewriters.


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## unkownwriter

TimothyEllis said:


> Didn't I see 1947 earlier in the thread? Almost predates typewriters.


Nah, typewriters have been around since about 1870 or so. Laws move like molasses in winter, especially things that aren't trendy or can get people up in arms. Most people don't care about trademark, or even understand it, and unless Disney decides to do something, copyright likely won't change again for a long time.


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## J. Tanner

she-la-ti-da said:


> Nah, typewriters have been around since about 1870 or so. Laws move like molasses in winter, especially things that aren't trendy or can get people up in arms. Most people don't care about trademark, or even understand it, and unless Disney decides to do something, copyright likely won't change again for a long time.


Copyright should change by 2023 when the copyright on Mickey Mouse is set to expire again.


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## unkownwriter

I believe Disney is working on making more copyright changes. 2023 isn't that long from now, though, so it might be fun to come up with some stories using good ol' Mickey.  Can you hear the howling from the top of Epcot?


----------



## KSRuff

she-la-ti-da said:


> The moon must be retrograde about now. Only event that explains people spending money to attempt trademarks on things they aren't going to get. For "big", someone just needs to file a protest and send that screen cap from above. Should be denied immediately. Of course, the trademark office should be doing this work not us. I don't care how backlogged they are, it's their blasted job.


Just thought I'd share, a letter of protest has been filed for that trademark application on "Big"

https://twitter.com/kneupperwriter/status/1010588424095461376

Not sure if she is on kboards, but a huge thanks to Lauren Blakely!


----------



## RedFoxUF

I'm filing protests on everything I can in the hopes the lawyers will get enough complaints from pissed off clients to actually due some real due diligence. One of the applications is for a word that already has 2 different TMs, at least one in the same general field. 

Seriously?  That's not a TM attorney, that's a shyster using you to make a quick buck.


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## unkownwriter

> Seriously? That's not a TM attorney, that's a shyster using you to make a quick buck.


The latest wave of folks ready to take advantage of indies, I guess. Charge to file useless trademarks, wash, rinse, repeat. There's a sucker born every minute.


----------



## Elizabeth S.

I checked cockybot earlier, and there are some real doozies now. Someone (who is not Frances Hodgson Burnett's heir) is trying to trademark "The Secret Garden" among a slew of other general/well-used terms.


----------



## EmilieHardie

Sooo... I used to work as a trade mark examiner at the Australian trade mark office (and yes, that is how the Australian office spells trade mark and I've been doing so for so long that its become a habit). I was one of the people who read through the applications and had to make a decision as to whether an application should be granted.

Note 1: this thread is 800+ pages long and I haven't read everything so apologies if I've repeated something that's already been said
Note 2: all of the below is based on my experience in the Australian office. There may be slight difference with the US system.

*TLR: trade marks are a complex area of law with a lot of misconceptions about what they are and how they work (made worse by the fact that they are enforced by the owner of the trade mark so, either through misunderstandings or simply trying it on, a cease and desist letter doesn't mean you've violated a trade mark just that they are claiming you are)*



Lilly_Frost said:


> Maybe someone could put up a petition at whichever website it is that lawmakers look at if a movement gets so many signatures? [...] To actually get legislators looking at how ridiculous some of these trademarks are, and how just trademarking every doggone word to shut down other writers needs to be brought to a halt.


Trade mark offices (and intellectual property agencies more generally) are one of the few government organisations that generally make money for governments because a) they provide services that people are prepared to pay for and b) they have little overheads except salaries, buildings and IT. In Australia, the fees are re-assessed periodically to ensure the organization isn't turning too much of a profit but I have to imagine that it would be hard to convince lawmakers to reduce the amount of money flowing IN to government coffers.

Also, applying for a trade mark doesn't mean it will be granted and, even if a trade mark is granted, it doesn't mean that all uses of the word is trade mark use (regardless of what a cease and desist letter might say).



she-la-ti-da said:


> The moon must be retrograde about now. Only event that explains people spending money to attempt trademarks on things they aren't going to get. For "big", someone just needs to file a protest and send that screen cap from above. Should be denied immediately. Of course, the trademark office should be doing this work not us. I don't care how backlogged they are, it's their blasted job.


Trade mark examiners are human. Should this application have been granted? Maybe, maybe not (having been on the other side, I'm extremely wary of making a call like that without seeing the examiner's reasoning and what they put on the file to back it up). But trade mark offices receive _a lot_ of applications. It's easy to notice the ones that get through that you disagree with but you're not seeing just how many applications were stopped because the examiners raised issues.

You also only know that "cocky" was originally granted; you don't know if the examiner considered it for only five minutes and made a call that you disagree with or if they agonized over it for days, discussed it with colleagues, took it to senior examiners/quality assessors before eventually making a decision based on some obscure court case ruling from fifty years ago.

Trade marks are a complex _area of law_ and just because something looks hinky to laypeople doesn't mean it won't be granted and just because something looks okay to a layperson doesn't mean there won't be a problem.



........ said:


> My understanding of the trademark office is that it's *not* their job. Their job is to process applications. They rely on the applications being true and the person making them telling the truth.
> 
> This is all well and good if there are serious penalties for not telling the truth but there aren't.
> 
> I'm not really sure what leeway an examiner at the office really has when a trademark like Big or Dragon Slayer comes across their desk. They may personally know there is prior art but if the application says there isn't and they swear it... maybe they're bound by that.
> 
> Does really seem as though there is room for a new job that is essentially "Use Google for ten minutes please" on applications.


In order:

Don't know about the US but job was to take applications at face value unless there's a reason to think otherwise - and that does involve a very specific type of research. The flip side was that we asked for everything in writing and were very specific about what we could accept, especially if it made a difference as to whether the trade mark would be accepted or not.

The big deterrent to lying is that the trade mark is invalid (thus wasting money). If you try to take someone to court and their lawyer can demonstrate that it shouldn't have been granted then the "owner" of the trade mark has basically lost the case. No idea if there are other penalties.

Don't know about the US but, in Aus, we did background research into applications as a matter of course just to see if anything needed to be considered (even if we think it's okay at first glance; we've all be surprised before). In the dragon slayer example, I'd grab the dictionary definitions of "dragon" and "slayer" before chucking the phrase into google. There's a bunch of results relating to different properties and I'd poke around until I could show it's a stock character, maybe try to get an unofficial definition. PDF the lot and chuck it on the internal file and send out a letter to the applicant saying 'it's a type of character, people are going to think it's a book that contains a dragon slayer rather than think it comes from you' and it's up to them to prove otherwise or change their products or services until there's no longer a problem.

Maybe that takes ten minutes on google and other resources, maybe it takes longer. But yes, we did it. However, prior art _is not a guarantee that the phrase can't be registered_.



Bards and Sages (Julie) said:


> Keep in mind that is PER CLASS of goods. And, if you look carefully at the official list of classes, "books" isn't a blanket class. "Downloadable series of fiction books" does not also include "series of fiction books" (physical products, not downloadable), or audiobooks. So to cover all three classes, you have to pay for each class. And the $225 fee also has the toughest requirements to file, and the majority of people would need an attorney to help with that. So you have to add in the cost of attorney fees for the filing.


And that's before you get into the services like "providing non-downloadable publications". That's a different class too. Yep, simply untangling what's being claimed in a private application could be a task in and of itself. I once sent out a letter for a single application that was fifty pages of classification issues (what this sort of problem is) ranging from 'I think you mean this' to 'we no longer accept this claim as it is unclear' (so don't bother coming back to me and say you lifted it from a fifty year old application) and simple unclear (for any number of weird and wonderful reasons). I finished up the letter with a politer version of 'there are no other issues at this time but there may be some once I know what you actually want this on'. Took me a couple of days on and off to sort through that mess.



Bards and Sages (Julie) said:


> Welcome to the government! Having had the displeasure of dealing with multiple government agencies over the years (DOT, FAA, FDA, OSHA, etc) YES, it is assumed that you are in fact submitting factual and accurate information when you file any government form. It is not the job of the person processing the application to verify it. There job is only to make sure it is done correctly and the info matches existing records. It is only when there is an audit (either because something got kicked back or because someone logged a complaint), that the original paperwork is looked at carefully.
> 
> See, it is actually rather brilliant. Because if you knowingly file a false application, then the government can use that against you if something happens later.


Well, what do you suggest? Getting people to send in examples or photos of examples of their products so we know they didn't claim "computers" when they're actually a computer servicing company or a website designer? Those are the sorts of issues I saw on a regular basis and most of them were caused by people thinking that they understood a complex area of law well enough to not need a trade mark attorney (not saying there weren't many people who managed just fine, only that not getting an attorney was the root cause of a lot of problems that couldn't be fixed without a new application). Out and out lying? Not so much.

My mandate was to assume that what I saw was correct unless given a reason to think otherwise - and my job description involved actually taking phone calls to either answer questions about my reports or explain processes/legislation. Sometimes that meant pissed off applicants who felt it was okay to take their anger out on me because they decided to save money on a lawyer and got their application wrong. Sometimes those calls involved answering what was, for me, an easy question or concern that saves the applicant a lot of time and money. Sometimes that means listening patiently to conspiracy theories about how the banks are out to steal people's business ideas with the same question peppered in occasionally.



TimothyEllis said:


> Didn't I see 1947 earlier in the thread? Almost predates typewriters.


Don't know about US but at least in Aus, the legislation has had amendments that majorly effect how it works so anything wanting to know also has to brush up on that.



Elizabeth S. said:


> I checked cockybot earlier, and there are some real doozies now. Someone (who is not Frances Hodgson Burnett's heir) is trying to trademark "The Secret Garden" among a slew of other general/well-used terms.


So? Provided the US's legislation is up to scratch, that should be caught by an examiner.

------

Urgh, that went long; apologies for the wall of text. Hopefully someone somewhere will find something in this monster of a post that helps them understand trade marks better.


----------



## Becca Mills

Posts have been deleted, pursuant to my guidance here, here, here, and here. We're done with personal criticism of Hopkins in this thread. Let's keep the focus on the legal efforts surrounding "cocky," other attempts to trademark ordinary words, and gaining a better understanding of trademarks and trademark law.


----------



## Becca Mills

EmilieHardie said:


> Don't know about the US but job was to take applications at face value unless there's a reason to think otherwise - and that does involve a very specific type of research. The flip side was that we asked for everything in writing and were very specific about what we could accept, especially if it made a difference as to whether the trade mark would be accepted or not.


I read that the U.S. process is "non-adversarial," so I think it was the same as your process. That's what that word would mean, right? That it's not really the USPTO's job to test applications' worthiness in a deep way?



> The big deterrent to lying is that the trade mark is invalid (thus wasting money). If you try to take someone to court and their lawyer can demonstrate that it shouldn't have been granted then the "owner" of the trade mark has basically lost the case. No idea if there are other penalties.


Sensible -- because making the system self-policing is a relatively efficient way to handle things -- yet simultaneously frustrating, given the costs of defending oneself in a lawsuit. Seems to me even a weak a trademark could be successful waved around for quite some time, so long as the holder didn't come up against someone with deep enough pockets to be willing to go to court. 



> Don't know about the US but, in Aus, we did background research into applications as a matter of course just to see if anything needed to be considered (even if we think it's okay at first glance; we've all be surprised before). In the dragon slayer example, I'd grab the dictionary definitions of "dragon" and "slayer" before chucking the phrase into google. There's a bunch of results relating to different properties and I'd poke around until I could show it's a stock character, maybe try to get an unofficial definition. PDF the lot and chuck it on the internal file and send out a letter to the applicant saying 'it's a type of character, people are going to think it's a book that contains a dragon slayer rather than think it comes from you' and it's up to them to prove otherwise or change their products or services until there's no longer a problem.
> 
> Maybe that takes ten minutes on google and other resources, maybe it takes longer. But yes, we did it. However, prior art _is not a guarantee that the phrase can't be registered_.


This is very interesting. So, it's not whether someone else has used the phrase before you, but whether you're the one whose product has become known by that phrase, even if you weren't the first to use it ... is that right?

The letter Puddleduck received from the USPTO suggests the U.S. examiners do at least some of what you're describing, though the hypothetical examples cited in the letter are so basic that I wonder if they're less apt to question applications here than you all were in Australia.

Here's a question for you, Emilie, if you don't mind (feel free to ignore) ...

If I were submitting a letter of protest on one of these one-word or simple-phrase marks that many of us are concerned about, and I wanted to argue against the proposed mark on the basis of _descriptiveness_, what sort of evidence do you think would be the most effective to include? Since prior use is not necessarily a death knell for a proposed mark, I assume sending in screenshots of a whole bunch of other earlier book-series that made use of the word or phrase wouldn't necessarily be sufficient?


----------



## AltMe

Becca Mills said:


> We're done with personal criticism of Hopkins in this thread.


You may as well lock the thread and be done with it. As long as the originator of this whole mess and insanity keeps popping up, she will get mentioned and name called.

The only way to stop that, is to stop the whole discussion.


----------



## Becca Mills

TimothyEllis said:


> You may as well lock the thread and be done with it. As long as the originator of this whole mess and insanity keeps popping up, she will get mentioned and name called.
> 
> The only way to stop that, is to stop the whole discussion.


You underestimate my moderatorly powers! Bwahahahaha! 

But seriously, trademarking is such an important issue. And although there is no Cockygate legal news at this moment, there surely will be in the future. We'd like to keep this thread open if possible.

Perhaps it's as good an opportunity as any for newer members to get a feel for how we roll here.


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## AltMe

Becca Mills said:


> Perhaps it's as good an opportunity as any for newer members to get a feel for how we roll here.


Yeah, square dice.


----------



## EmilieHardie

Becca Mills said:


> I read that the U.S. process is "non-adversarial," so I think it was the same as your process. That's what that word would mean, right? That it's not really the USPTO's job to test applications' worthiness in a deep way?


Yes, that does sound similar. As I said above, the overwhelming majority of the issues I saw came not from people taking advantage of our assumption that what they say is accurate but who simply had no idea what they were doing (and usually thought they were totally on top of it all).



Becca Mills said:


> Sensible -- because making the system self-policing is a relatively efficient way to handle things -- yet simultaneously frustrating, given the costs of defending oneself in a lawsuit. Seems to me even a weak a trademark could be successful waved around for quite some time, so long as the holder didn't come up against someone with deep enough pockets to be willing to go to court.


PSA: as with the actually police, you are not guilty until the courts say you are. If you get a letter, take it to a lawyer in the field for an informed opinion from someone who _isn't inherently adversarial to you like the trade mark's owner and they lawyer(s)_. Whether to fight it regardless of the validity is a personal decision about your risk tolerance but these are not some determination from an independent arbiter, it's just what someone is _saying they think_.



Becca Mills said:


> This is very interesting. So, it's not whether someone else has used the phrase before you, but whether you're the one whose product has become known by that phrase, even if you weren't the first to use it ... is that right?


Not really; whether a trade mark can be registered is not about whether it's become more known, it's about whether the trade mark _as it was applied for_ (that's majorly important) is being used _in a way that would lead consumers to think that it shows who produced the product/services_. That's why descriptiveness is a problem: it indicates something about the product/service _other than the producer_ so customers will think that's it's meaning, as well as something that other producers _need_ to use without "improper motive" (basically, they're honestly trying not to be confused for the other brand).

Look, it's a super complicated topic, so it's totally okay for this all to not be obvious or intuitive 



Becca Mills said:


> The letter Puddleduck received from the USPTO suggests the U.S. examiners do at least some of what you're describing, though the hypothetical examples cited in the letter are so basic that I wonder if they're less apt to question applications here than you all were in Australia.


I would probably use examples as basic as that too, because they're there for illustrative value rather than as a masterclass on the complexities of examining trade marks. And I can personally attest that a lot of people just don't get these concepts, so they're important to reiterate.

I think there's a point that the writer of the letter didn't address, almost certainly because it's a matter for the courts to decide, is whether a registration for a single word on it's own is sufficiently similar to the word as part of a longer title that the longer title is trade mark infringement. I think it would depend on what the word is ("cocky" or "cocky series" or "cocky books" would probably be too similar) but it _is_ used a lot in a variety of different phrases so my gut feeling *that is not legal advice* is that readers aren't likely to think that "cocky" and "cocky roommate" are from the same author so it _may_ be different enough. Maybe. Did I mention this is in no way legal advice?



Becca Mills said:


> Here's a question for you, Emilie, if you don't mind (feel free to ignore) ...
> 
> If I were submitting a letter of protest on one of these one-word or simple-phrase marks that many of us are concerned about, and I wanted to argue against the proposed mark on the basis of _descriptiveness_, what sort of evidence do you think would be the most effective to include? Since prior use is not necessarily a death knell for a proposed mark, I assume sending in screenshots of a whole bunch of other earlier book-series that made use of the word or phrase wouldn't necessarily be sufficient?


...okay, but I feel the need for another disclaimer: my experience was with the Australian trade mark agency and may not transfer across. Also, to all Kboards readers, please don't refer back to something I've said when talking to the US office. They're not going to want to know what a former examiner from a different jurisdication has to say. This is for everyone's edification only.

Cool? Cool.

So, Australia had an opposition/hearing system where it went to a panel of senior and experienced examiners from the organisation rather than going before the courts, so a submission I would write is likely to be more informal than something going to court.

I would (in order):

get the definition for the trade mark. Bonus points if I can get the definition from the trade mark office's official dictionary (ours was the Macquarie Dictionary, don't know about the US).
simply and succinctly relate that definition to the products/services to show how it is _directly descriptive_. This is very important; it needs to be direct, not aluding to the product/service or an aspect thereof.
back that up with evidence* showing the trade mark _as applied for_ (i.e. not as part of a longer phrase) being used descriptively. Because titles are a tricky beast (they can range from "gardening guide" to "Harry Potter" on a scale of descriptive vs trade mark use) you're much better off finding the trade mark used elsewhere, like the summary or a tweet or blog post. That's not to say that titles can't work, it can just be hard to judge what the nature of the use is.
if you can, finish up with _relevant_ case law regarding _analogous_ trade marks (i.e. the case turned on the same issue)

*yes, screenshots were acceptable for Aus but we preferred ones through an archival service like Wayback to get a clear date of when it was taken)

And, after all that, it's still possible that it won't be enough simply because the trade mark is only alluding to something about the goods and services, not directly describing it. Sometimes the difference is really, really fine.

I _really_ don't want to comment on another examiner's decision (especially when I haven't seen their research and casefile, and especially on such an annoying mark to examine) but I think the hardest part with doing this for the trade mark that sparked all this furor is showing that "cocky" (not "cocky alpha male", not "cocky [illegitimate person]" - just "cocky" on it's own) is clearly and directly describing the book or something about the book.


----------



## 39416

I haven't exactly followed the cockygate issue but I am curious --did She-Who-Must-Not-Be-Named get away with it or did all the fuss eventually shoot it down?


----------



## Rick Gualtieri

loraininflorida said:


> I haven't exactly followed the cockygate issue but I am curious --did She-Who-Must-Not-Be-Named get away with it or did all the fuss eventually shoot it down?


It's ongoing. Her TM is being contested and there's still a lawsuit out there. This is still very much a thing.


----------



## 101569

Is this true is cockygate over?

http://www.dailymail.co.uk/news/article-5904583/Romance-novelist-tries-trademark-word-cocky-stop-copycats-cashing-success.html

How was there not anything posted here?


----------



## Jan Hurst-Nicholson

idontknowyet said:


> Is this true is cockygate over?
> 
> http://www.dailymail.co.uk/news/article-5904583/Romance-novelist-tries-trademark-word-cocky-stop-copycats-cashing-success.html
> 
> How was there not anything posted here?


That's good news all round. I wonder how much the publicity has increased her sales .


----------



## Jena H

idontknowyet said:


> Is this true is cockygate over?
> 
> http://www.dailymail.co.uk/news/article-5904583/Romance-novelist-tries-trademark-word-cocky-stop-copycats-cashing-success.html
> 
> How was there not anything posted here?


Yeah, I think "moving on" is the best thing she can do. Also, the article states that the first "copycat" came out mere weeks after Hopkins first Cocky book... which seems awfully unlikely. Maybe an error by the Daily Mail?


----------



## Rick Gualtieri

Jena H said:


> Yeah, I think "moving on" is the best thing she can do. Also, the article states that the first "copycat" came out mere weeks after Hopkins first Cocky book... which seems awfully unlikely. Maybe an error by the Daily Mail?


Definitely a one-sided fluff piece on their end. But hopefully the end result they're talking about is on the up-and-up.

Still, the "war" is far from over. She started a nasty trend, so don't expect the protect letters to stop anytime soon.


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## Desert Rose

Jena H said:


> Also, the article states that the first "copycat" came out mere weeks after Hopkins first Cocky book... which seems awfully unlikely. Maybe an error by the Daily Mail?


Funny that the article claims the "copycats" were copying FH, while ignoring that Cocky Bastard came out in 2015.


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## OnlyTheGrotesqueKnow

idontknowyet said:


> Is this true is cockygate over?
> 
> http://www.dailymail.co.uk/news/article-5904583/Romance-novelist-tries-trademark-word-cocky-stop-copycats-cashing-success.html
> 
> How was there not anything posted here?


There are comments below the article that she paid for this article to be submitted. Kinda explains the biased approach and lack of vetting. Appreciate the post, thanks.


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## Ros_Jackson

idontknowyet said:


> Is this true is cockygate over?


The DM is notorious for failing to fact-check. Wikipedia editors voted to ban it as a reliable source in 2017, according to the Guardian. https://www.theguardian.com/technology/2017/feb/08/wikipedia-bans-daily-mail-as-unreliable-source-for-website


----------



## Becca Mills

I hope the development reported in the DM article is correct:



> Crescent and Hopkins have come to an agreement which sees neither side pay the either any money.
> 
> Instead, Hopkins will give up her trademark in a gesture of good faith and Crescent will change her book covers to all block font.


I assume we'd be seeing some sort of formal announcement from RWA if the settlement were a done deal.


----------



## Becca Mills

Thanks so much for the response, EmilieHardie! I think I'll need to digest it a bit ...



EmilieHardie said:


> Becca Mills said:
> 
> 
> 
> This is very interesting. So, it's not whether someone else has used the phrase before you, but whether you're the one whose product has become known by that phrase, even if you weren't the first to use it ... is that right?
> 
> 
> 
> Not really; whether a trade mark can be registered is not about whether it's become more known, it's about whether the trade mark _as it was applied for_ (that's majorly important) is being used _in a way that would lead consumers to think that it shows who produced the product/services_. That's why descriptiveness is a problem: it indicates something about the product/service _other than the producer_ so customers will think that's it's meaning, as well as something that other producers _need_ to use without "improper motive" (basically, they're honestly trying not to be confused for the other brand).
Click to expand...

This is a great distinction. Thank you for explaining it! So if I were to try write a series named "Magic Everywhere, the Magic Series" and then tried to TM the word "magic," the USPTO would have to consider whether the word "magic," appearing in a book title, indicates 1) that the book is by me, 2) that the book contains or is about magic, ... or 3) that it's sort of both, and they'll have to make a judgement call?

If judgement calls do happen, I can see at least them going in favor of the TM-requester. Sure, words in book series titles probably describe the books' contents, at least to some degree, but if it's an unusual word, and if the author has moved a lot of books, the word might, in the USPTO's mind, still primarily function to point at the author's identity rather than the books' content. Is that accurate?



EmilieHardie said:


> I think there's a point that the writer of the letter didn't address, almost certainly because it's a matter for the courts to decide, is whether a registration for a single word on it's own is sufficiently similar to the word as part of a longer title that the longer title is trade mark infringement. I think it would depend on what the word is ("cocky" or "cocky series" or "cocky books" would probably be too similar) but it _is_ used a lot in a variety of different phrases so my gut feeling *that is not legal advice* is that readers aren't likely to think that "cocky" and "cocky roommate" are from the same author so it _may_ be different enough. Maybe. Did I mention this is in no way legal advice?


Right, not legal advice. 

The tricky thing for me to understand, with "cocky," is that no one involved in this dispute is actually using the word in a stand-alone way. I would think that readers really have to notice "cocky" used in the specific way Hopkins uses it (at the first word in a two-term title following the pattern _Cocky [Singular Noun]_ in order to have any chance of recognizing a title containing "cocky" as a Hopkins title. I mean, a book titled just _Cocky _would not fit the titling pattern Hopkins has established and would not jump out at me as being by her. So the TM, as granted, doesn't seem to me to identify Hopkins's books clearly at all. Just doesn't make sense to me ...



EmilieHardie said:


> So, Australia had an opposition/hearing system where it went to a panel of senior and experienced examiners from the organisation rather than going before the courts, so a submission I would write is likely to be more informal than something going to court.
> 
> I would (in order):
> 
> get the definition for the trade mark. Bonus points if I can get the definition from the trade mark office's official dictionary (ours was the Macquarie Dictionary, don't know about the US).


So far as I'm seeing online, we don't have one. Maybe I'm just missing it, though.



EmilieHardie said:


> simply and succinctly relate that definition to the products/services to show how it is _directly descriptive_. This is very important; it needs to be direct, not aluding to the product/service or an aspect thereof.





EmilieHardie said:


> And, after all that, it's still possible that it won't be enough simply because the trade mark is only alluding to something about the goods and services, not directly describing it. Sometimes the difference is really, really fine.





EmilieHardie said:


> I think the hardest part with doing this for the trade mark that sparked all this furor is showing that "cocky" (not "cocky alpha male", not "cocky [illegitimate person]" - just "cocky" on it's own) is clearly and directly describing the book or something about the book.


I'm not sure I'm getting the distinction between "directly," "clearly" descriptive versus allusive. Like, I can see how Apple's bitten-apple logo is _allusive_ and not _descriptive_: the image calls to mind the story of Eve biting the apple and gaining knowledge, so Apple's products are, metaphorically, the gateway to heretofore restricted knowledge, or something like that, but the logo is not _descriptive_ because a laptop is not a fruit. The only possible association is metaphorical/allusive. But with a word in a book-series title, I get stuck. How might such a word be allusive rather than descriptive? My kneejerk reaction is that book-series titles are probably almost always descriptive, but that must not be true; if it were, no TMs would be granted in that area, but they are granted. I mean, in re your example below, "Harry Potter" does _describe_ that series' contents in that the books are about a guy named Harry Potter. I feel like I'm not getting something.



EmilieHardie said:


> back that up with evidence* showing the trade mark _as applied for_ (i.e. not as part of a longer phrase) being used descriptively. Because titles are a tricky beast (they can range from "gardening guide" to "Harry Potter" on a scale of descriptive vs trade mark use) you're much better off finding the trade mark used elsewhere, like the summary or a tweet or blog post. That's not to say that titles can't work, it can just be hard to judge what the nature of the use is.


Hmm ... okay, I think I get it. The fact that Hopkins describes _Cocky Roomie_'s hero as "arrogant" in the book's blurb ... would that kind of thing be helpful? Or in _Cocky Biker_: "Sunshine? Only a grey-eyed cocky biker would nickname me something so ironic." Actually using the word in the blurb indicates that, in Hopkins's own mind, the _Cocky Biker_'s hero has cockiness as a personality trait, and therefore the word is descriptive?

Would other people's remarks about books count as evidence? Like, if there were a bunch of reviews talking about how cocky the heroes are?

Would it help if other authors who use the word "cocky" in their titles describe their heroes as cocky in their blurbs, tweets, etc., showing that the word is commonly used in a descriptive way in book titles in the genre? For instance, the blurb for Tara Crescent's _Her Cocky Doctors_ includes the sentence, "I'm going to destroy these cocky doctors."



EmilieHardie said:


> if you can, finish up with _relevant_ case law regarding _analogous_ trade marks (i.e. the case turned on the same issue)


That'll be hard for most authors. Maybe we'll luck out and a lawyer-author will put together a slug of case law and give us permission to quote it in our letters of protest.

Thanks for the explanations you offered, Emilie, and please don't feel like you have to keep answering me. This stuff makes me feel particularly dense, I have to say.


----------



## RedFoxUF

idontknowyet said:


> Is this true is cockygate over?
> 
> http://www.dailymail.co.uk/news/article-5904583/Romance-novelist-tries-trademark-word-cocky-stop-copycats-cashing-success.html
> 
> How was there not anything posted here?


I'm skeptical. Just because she says she's out doesn't make the TM disappear. This strikes me as a move to shut down the drama and let it all fade while still retaining the TM in the end.

Until the TM office says it's null and void, it's still active.


----------



## The one with all the big dresses on the covers

Did I miss something? The article is dated 1 July and says: "On Friday, the case was settled in a New York court where a judge said she had no right to stop others from using the word in their titles." Has there been another ruling in the last few days? Is that what you're referring to RPatton? Because it seems significant to me if a judge did actually say that (above and beyond this specific case being settled, I mean).


----------



## David VanDyke

I just saw this--seems a bit more legit. Seems to get a fair bit right, though obviously some glaring gaps. Interesting reading.

https://www.inquisitr.com/4966178/cockygate-author-decides-to-step-down-from-trademark-battle-for-exclusive-use-of-the-word-cocky/


----------



## Jena H

David VanDyke said:


> I just saw this--seems a bit more legit. Seems to get a fair bit right, though obviously some glaring gaps. Interesting reading.
> 
> https://www.inquisitr.com/4966178/cockygate-author-decides-to-step-down-from-trademark-battle-for-exclusive-use-of-the-word-cocky/


From the article: "One of Faleena's claims in the original lawsuit was that some of her fans were inadvertently buying other author's books that had the similar stylized font and contained the word "cocky." "

One would think that something like... oh, I don't know... the author's NAME might be a sign that it's not a Faleena Hopkins book? In the case of Tara Crescent, it's not like her author name was small, or hidden. If someone bought the "wrong" author's books, then imho that's the fault of the reader not paying attention.


----------



## The one with all the big dresses on the covers

RPatton said:


> That the article isn't an article and instead a glorified press release. It's a way to control the narrative so Faleena looks better.
> 
> The judge hasn't ruled and wouldn't rule if there's a settlement. Once there's a settlement, the judge says, get out of my court. And in this case specifically, the judge said he wouldn't weigh on the merit of the trademark and punted it back to the trademark office. (Which is why Kevin isn't part of the defendants.) They have until Friday, on the 6th to reach a settlement and file it with the court. My understanding is that they have reached a settlement, but the judge hasn't said yes or no yet. The only thing the judge said about the trademark that is on record is that it is weak at best.
> 
> This is a perfect example of checking a source. Just because it's a paper, doesn't mean it's reputable. The DM is a tabloid and the inquisitor isn't much better. These are all publications that generate revenue from publishing press releases as articles. Until the story hits the pages of The Guardian or USA Today (both of which had articles pre-trial), I wouldn't put much stock in what you're reading.


Yeah, I saw the comments that it was basically a press release. I was just surprised that a PR piece originating from Faleena would falsely say that the judge had ruled against her.


----------



## AltMe

MelanieCellier said:


> Yeah, I saw the comments that it was basically a press release. I was just surprised that a PR piece originating from Faleena would falsely say that the judge had ruled against her.


Why is that false? From her perspective, he did rule against her. She didn't win anything she went to court to get.


----------



## The one with all the big dresses on the covers

TimothyEllis said:


> Why is that false? From her perspective, he did rule against her. She didn't win anything she went to court to get.


My understanding is that there's a pretty big difference between a judge making a ruling and the two parties involved making a decision to settle.


----------



## AltMe

MelanieCellier said:


> My understanding is that there's a pretty big difference between a judge making a ruling and the two parties involved making a decision to settle.


The trouble is, it's mixing up multiple events as if they were one. The judge did rule on some things, and sent them off to come to a settlement. So she lost, and she was forced to settle.

Regardless, it still ends up back at the trademark office.


----------



## Becca Mills

TimothyEllis said:


> The trouble is, it's mixing up multiple events as if they were one. The judge did rule on some things, and sent them off to come to a settlement. So she lost, and she was forced to settle.


He denied her request for temporary restraining orders and dismissed her action against Kneupper in favor of letting the USPTO process play out, but my impression was that the suits against Crescent and Watson were continuing and would move into the discovery phase. So maybe it's more a matter of her choosing to settle than being forced to do so?


----------



## The one with all the big dresses on the covers

Becca Mills said:


> He denied her request for temporary restraining orders and dismissed her action against Kneupper in favor of letting the USPTO process play out, but my impression was that the suits against Crescent and Watson were continuing and would move into the discovery phase. So maybe it's more a matter of her choosing to settle than being forced to do so?


That's the last thing I'd heard, and it was a while ago too. I was surprised the article would give a specific day (and such a recent one) unless there had been at least something happening back in court. But I hadn't heard anything about it here.


----------



## EmilieHardie

Becca Mills said:


> EmilieHardie said:
> 
> 
> 
> Not really; whether a trade mark can be registered is not about whether it's become more known, it's about whether the trade mark _as it was applied for_ (that's majorly important) is being used _in a way that would lead consumers to think that it shows who produced the product/services_. That's why descriptiveness is a problem: it indicates something about the product/service _other than the producer_ so customers will think that's it's meaning, as well as something that other producers _need_ to use without "improper motive" (basically, they're honestly trying not to be confused for the other brand).
> 
> 
> 
> This is a great distinction. Thank you for explaining it! So if I were to try write a series named "Magic Everywhere, the Magic Series" and then tried to TM the word "magic," the USPTO would have to consider whether the word "magic," appearing in a book title, indicates 1) that the book is by me, 2) that the book contains or is about magic, ... or 3) that it's sort of both, and they'll have to make a judgement call?
> 
> If judgement calls do happen, I can see at least them going in favor of the TM-requester. Sure, words in book series titles probably describe the books' contents, at least to some degree, but if it's an unusual word, and if the author has moved a lot of books, the word might, in the USPTO's mind, still primarily function to point at the author's identity rather than the books' content. Is that accurate?
Click to expand...

Basically right but I'm a bit leery of the word "judgement" because it sort of implies that who the examiner is can matter a lot more than it actually does (every trade mark office I've ever encountered does it's utmost to ensure that outcomes of examinations are as consistent as possible). In the case of 3, it's more like evaluating the manner in which the research shows the word (or logo, or whatever - there are a lot of different types of trade marks) being used. Decisions are never made out of thin air; you need to back it up. In tough calls, I would regularly attach 50+ pages of pdf versions of websites and other resources to files to back up my reasoning, plus bonus examples of how the office has previously treated similar trade marks (the holy grail is if you can reference a mark with similar issues that was recently randomly sampled for quality checking and the quality section agreed with the original examiner's reasoning).

That said, sometimes there are really tough calls. At least in Australia, there's a legislated concept called "presumption of registrability" - basically, if after an examiner has taken all reasonable research and consultation (i.e. talking it through with other and more senior examiners), they are not _satisfied that an objection exists_ then the trade mark should be accepted. Really hard marks like that are unusual; it comes up more when attorneys are writing back to tell you why you were wrong to take issue with their client's application (I don't think I ever saw a good trade mark attorney not end a letter without mentioning it and most had standard wording).

However, how much the applicant has used the trade mark isn't considered during the initial examination. Instead, it's about the nature of the trade mark (definitions and so on) and how it's being used in the market place in general. If an issue is found, then applicant's have the option to come back and provide us with evidence that, while the issue may exist, they have used it enough that customers have been educated to ignore whatever the issue is and associate it with the applicant only. Obviously, the worse the issue the more evidence they need to show.

I don't know if there's any way to tell if a US trade mark was accepted after evidence but there will be a comment in the endorsement field, like in this one I found with a quick search (scroll down to find the endorsement).



Becca Mills said:


> Right, not legal advice.
> 
> The tricky thing for me to understand, with "cocky," is that no one involved in this dispute is actually using the word in a stand-alone way. I would think that readers really have to notice "cocky" used in the specific way Hopkins uses it (at the first word in a two-term title following the pattern _Cocky [Singular Noun]_ in order to have any chance of recognizing a title containing "cocky" as a Hopkins title. I mean, a book titled just _Cocky _would not fit the titling pattern Hopkins has established and would not jump out at me as being by her. So the TM, as granted, doesn't seem to me to identify Hopkins's books clearly at all. Just doesn't make sense to me ...


Don't worry, even I'm confused. In Aus, you can trade mark individual book titles so I have no idea how it works for US trade marks for book series. I mean, does the trade mark only apply if someone is using the mark in the name of the series, or can a trade mark that can only be obtained for a series also be used against individual titles? Are individual titles an infringement when they're not registrable in the first place? 



Becca Mills said:


> So far as I'm seeing online, we don't have one. Maybe I'm just missing it, though.


Then I'd just go with a reputable one with the clearest definition.



Becca Mills said:


> I'm not sure I'm getting the distinction between "directly," "clearly" descriptive versus allusive. Like, I can see how Apple's bitten-apple logo is _allusive_ and not _descriptive_: the image calls to mind the story of Eve biting the apple and gaining knowledge, so Apple's products are, metaphorically, the gateway to heretofore restricted knowledge, or something like that, but the logo is not _descriptive_ because a laptop is not a fruit. The only possible association is metaphorical/allusive. But with a word in a book-series title, I get stuck. How might such a word be allusive rather than descriptive? My kneejerk reaction is that book-series titles are probably almost always descriptive, but that must not be true; if it were, no TMs would be granted in that area, but they are granted. I mean, in re your example below, "Harry Potter" does _describe_ that series' contents in that the books are about a guy named Harry Potter. I feel like I'm not getting something.


Uh, okay, maybe I went a bit into jargon territory. Let me wind it back a bit. There are kind of two issues at play here.

1. describing something about the book/product doesn't necessarily mean it's not okay as a trade mark, because it's also about whether it's something other traders should be able to use and/or whether what it's describing is likely to be seen as specific to a particular author

Let's go back to the 'dragon slayer' and 'Harry Potter' examples. Let's say you write a book about two dragon slayers, one named Harry Potter (and pretend that Harry Potter hadn't already been trade marked out of existence) and the other Fusdfn'tur. You then try to trade mark following permutations: 'dragon slayer', 'Harry', 'Potter', 'Harry Potter', 'Fusdfn'tur', 'dragon slayer Harry Potter' and 'dragon slayer Fusdfn'tur'.

As above, 'dragon slayer' is describing a _type_ of character. If a reader sees that, they're going to think there's a dragon slayer in the book and _other writers should also be able to tell readers that there's a/some dragon slayer(s) in the book_.

Names are trickier. In hindsight, Harry Potter might not have been a good example (which is why I added Fusdfn'tur). Harry is a common first name and Potter is a common surname. Customers are going to think that that there's a character that's either a) named Harry, b) named Potter or c) has the job of a potter. Because they're so common, it's unreasonable to think that no writers should be able to use Harry or Potter as a name so those would likely be problematic.

Combinations of names are more likely to be registerable (disclaimer: _as book titles and in Australia_). Yes, people are likely to think that that there's a character in there that has that name but there's a lot less chance that other people are going to write books with that exact combination and _customers are likely to think that other books with that specific character name all come from the same person/company_. More common combinations or combinations of common names may still be problematic (why Harry Potter might not have been the best example after all) but a lot of combinations may be fine (again, in Aus).

'Fusdfn'tur' is just me randomly smashing the keyboard so is almost certainly fine for descriptiveness/commonly used (but may still be similar to other trade marks already registered).

Adding either name to 'dragon slayer' is likely to make it more/even more registrable _but_ may not give rights in relation to stopping people using the name without 'dragon slayer'.

2. 'Alluding to' has a very specific meaning for trade marks and 'directly/clearly' means absolutely no jumps of logic or connection whatsoever

Let's look at adjectives on books. Take 'exciting', for example. Everyone knows what it means when a book is exciting. Other people are going to reasonably want to describe a book as exciting and customers are going to think it means the type of book, not something specific to the book that means it must come from a particular author/publisher.

Now let's look at 'bossy' (and this is as close as I'm willing to come to the one that started it all but you can probably guess where I would come down on it if I had to examine the mark, which is no way a commentary on what I _think should be registrable_ but only what _may be registrable in Australia under existing legislation_). What the hell is a 'bossy' book? Okay, you can _guess_ that there's probably a bossy character but they haven't applied for 'bossy [character description]', they've applied for 'bossy' on it's own. You've got to _theorise_ or _guess_ the connection, so it's likely to be allusory. Now, when doing the research I might find that there actually is a meaning for 'bossy book'. I've been surprised before. But it's probably not directly descriptive.

The apple logo/laptop example is so tenuous a connection as to be totally out of consideration. It wouldn't even enter my mind if I had to examine that combination.



Becca Mills said:


> Hmm ... okay, I think I get it. The fact that Hopkins describes _Cocky Roomie_'s hero as "arrogant" in the book's blurb ... would that kind of thing be helpful? Or in _Cocky Biker_: "Sunshine? Only a grey-eyed cocky biker would nickname me something so ironic." Actually using the word in the blurb indicates that, in Hopkins's own mind, the _Cocky Biker_'s hero has cockiness as a personality trait, and therefore the word is descriptive?
> 
> Would other people's remarks about books count as evidence? Like, if there were a bunch of reviews talking about how cocky the heroes are?
> 
> Would it help if other authors who use the word "cocky" in their titles describe their heroes as cocky in their blurbs, tweets, etc., showing that the word is commonly used in a descriptive way in book titles in the genre? For instance, the blurb for Tara Crescent's _Her Cocky Doctors_ includes the sentence, "I'm going to destroy these cocky doctors."


See my previous disclaimers before reading this, but also this is *my personal judgement. I may be wrong,* which is why I've tried so hard not to go into details but I can't think of a way to talk about what you've suggested as evidence without getting more into the weeds. Do not make any decisions based on this without consulting a lawyer. So, in order:


describes Cocky Roomie's hero as "arrogant" in the book's blurb: no. Not only does it describe the character, rather than the book (see my point about alluding to), it doesn't even use the word 'cocky' itself
Cocky Biker: "Sunshine? Only a grey-eyed cocky biker [...].": again, 'cocky' is used with 'biker'. It's clear what is being described and the trade mark that was granted was for 'cocky', not 'cocky biker'. I personally wouldn't be giving this much weight as it's not using _the trade mark descriptively on it's own_
"Actually using the word in the blurb indicates that, in Hopkins's own mind, the Cocky Biker's hero has cockiness as a personality trait, and therefore the word is descriptive?": again, it's part of a description of a type of character and what's she's applied for _does not refer to a particular character type, it's just the word 'cocky'_
"Would other people's remarks about books count as evidence? Like, if there were a bunch of reviews talking about how cocky the heroes are?": other people's descriptions of things would help, _if they are using the trade mark that was applied for in a descriptive way_. Other people describing the character comes back to the same point about it being used as part of a bigger idea, not as descriptive on books and without other things
[*]"Would it help if other authors who use the word "cocky" in their titles describe their heroes as cocky in their blurbs, tweets, etc., showing that the word is commonly used in a descriptive way in book titles in the genre? For instance, the blurb for Tara Crescent's Her Cocky Doctors includes the sentence, "I'm going to destroy these cocky doctors.""" same as above, it's talking about character traits[/list]

Before I say this next bit, I'm going to reiterated that this is *not legal advice, people.*.

Okay, all on the same page?

My *personal *opinion would be that I would not consider these evidence that 'cocky' is being used descriptively but the flip side is that, if I was examining it and saw there was an earlier application/registration for 'cocky doctor' or something like that _I may not consider it to be similar enough to be infringing on the rights of the owner of the earlier trade mark to register 'cocky'_. That decision would take _a lot_ of thought and I would probably talk to other examiners about it and it may not be the decision a judge eventually considering the case my decide, but that would be the other side of my consideration about whether 'cocky' is descriptive.

That's because 'cocky doctor' is clearly describing a type of character and shows that the book contains a cocky doctor (duh). If 'cocky' on it's own is _not_ descriptive, then 'cocky doctor' must be different to 'cocky'. But again, just my opinion.

While I understand the court case is stressful for the participants, on an intellectual level I think it would be very beneficial to the community if there were no settlement and the judge got to rule on what is infringement of the trade mark. That's in no way advocating that they shouldn't take a good settlement if one is offered, only that clarity on the subject might be beneficial.



Becca Mills said:


> That'll be hard for most authors. Maybe we'll luck out and a lawyer-author will put together a slug of case law and give us permission to quote it in our letters of protest.


That would be generous of them. There's certainly a few lawyer-authors around though I don't recally seeing any mentioning that they specialise in trade marks, which would sure be helpful.



Becca Mills said:


> Thanks for the explanations you offered, Emilie, and please don't feel like you have to keep answering me. This stuff makes me feel particularly dense, I have to say.


Well, I'm a long time lurker and it's great to be able to give back after all the help I've gotten here. Besides, a lot of the misconceptions around trade marks bother me (I die a little inside every time I here someone say "you should trade mark that" because it's usually something that would me a terrible trade mark) and it's great to be able to clear some of them up.

As to feeling dense, it's a complicated and weird area. So complicated that I always winced if I saw the name of a patent attorney (someone who is already specialising in intellectual property law) because they would often think they understood what was going on without comprehending just how specialised it can be.

I've actually been thinking about spinning this out into a new thread, if that's okay. It's kind of grown beyond the scope of just one word titles and I'm leery about commenting on any particular cases (i.e. 'cocky') in case people then think that's something they can take to the bank which is not a good idea between, different jurisdictions treating things differently and practices changing (generally because of court cases, which may be decided by judges who know nothing about trade marks in particular). I think it would be useful for people to have a place to ask any questions they might have about the process and considerations that go into registering a trade mark.

Plus these posts are monsters that just keep growing.


----------



## Ann in Arlington

Jena H said:


> If someone bought the "wrong" author's books, then imho that's the fault of the reader not paying attention.


More likely scenario: Reader sees the book and thinks, "oh, this looks like those other books I read <checks> no, different author, but I REALLY liked those other books and there aren't any new ones of hers I haven't read yet. Since this looks so similar, even though it's a different author, I think I'll check them out."

FWIW, I do that all the time. I'll see a blurb or cover style that's similar to something I've read -- gives a feel for the genre, style, and atmosphere of the book if done well. If it's like enough to something I had read and enjoyed, it is often enough to get me to buy an unknown-to-me author. And *I* tend to be pretty picky. I suspect many who are more eclectic in their taste and/or relaxed about technical details would be even more inclined to do this: They read a LOT, they liked those KINDS of books and, oh LOOK, here are MORE . . . let's try 'em out.


----------



## AltMe

Ann in Arlington said:


> More likely scenario: Reader sees the book and thinks, "oh, this looks like those other books I read <checks> no, different author, but I REALLY liked those other books and there aren't any new ones of hers I haven't read yet. Since this looks so similar, even though it's a different author, I think I'll check them out."
> 
> FWIW, I do that all the time. I'll see a blurb or cover style that's similar to something I've read -- gives a feel for the genre, style, and atmosphere of the book if done well. If it's like enough to something I had read and enjoyed, it is often enough to get me to buy an unknown-to-me author. And *I* tend to be pretty picky. I suspect many who are more eclectic in their taste and/or relaxed about technical details would be even more inclined to do this: They read a LOT, they liked those KINDS of books and, oh LOOK, here are MORE . . . let's try 'em out.


This is where it all started from. An author saw this in action, and went "bastards are stealing my fans". Case of arse end around. Fans like multiple authors within a theme. Not authors have fans.


----------



## KSRuff

Some of the more recent trademark attempts include....

Enchanted Forest
Lost Ocean
Secret Garden
Storytellers
Dragon Slayer
True Crime Detectives
Quantum Series

All of which have been used in several book titles in their respective genres. Just want to put it on your radar in case any of you are directly impacted.


----------



## Rick Gualtieri

KSRuff said:


> Some of the more recent trademark attempts include....
> 
> Enchanted Forest
> Lost Ocean
> Secret Garden
> Storytellers
> Dragon Slayer
> True Crime Detectives
> Quantum Series
> 
> All of which have been used in several book titles in their respective genres. Just want to put it on your radar in case any of you are directly impacted.


I know for a fact there's a letter of protest already in for Dragon Slayer.


----------



## Jan Hurst-Nicholson

KSRuff said:


> Some of the more recent trademark attempts include....
> 
> Enchanted Forest
> Lost Ocean
> Secret Garden
> Storytellers
> Dragon Slayer
> True Crime Detectives
> Quantum Series
> 
> All of which have been used in several book titles in their respective genres. Just want to put it on your radar in case any of you are directly impacted.


So much for the oft-touted 'there's no copyright on book titles' . Who would have thought someone would trade-mark them .


----------



## Jena H

Ann in Arlington said:


> More likely scenario: Reader sees the book and thinks, "oh, this looks like those other books I read <checks> no, different author, but I REALLY liked those other books and there aren't any new ones of hers I haven't read yet. Since this looks so similar, even though it's a different author, I think I'll check them out."
> 
> FWIW, I do that all the time. I'll see a blurb or cover style that's similar to something I've read -- gives a feel for the genre, style, and atmosphere of the book if done well. If it's like enough to something I had read and enjoyed, it is often enough to get me to buy an unknown-to-me author. And *I* tend to be pretty picky. I suspect many who are more eclectic in their taste and/or relaxed about technical details would be even more inclined to do this: They read a LOT, they liked those KINDS of books and, oh LOOK, here are MORE . . . let's try 'em out.


Exactly. The reader i interested in "cocky" heroes, and a certain level of heat in the action of the book. As you say, many readers just want something the same or similar to what they've already enjoyed. Same author, different author... many don't care as long as the story is good and give the reader what they want.


----------



## Ann in Arlington

Just removed a handful of off-topic posts.


----------



## Ros_Jackson

Thoralene said:


> One of the major SFF self-publishers that had their Amazon account suspended yesterday also had multiple trademark applications open for some fairly common words and phrases. If this suspension at Amazon holds (big IF, I realize), wondering what the status of those applications might be? Hoping they'll be dead in the water.


It should have no effect, because Amazon is just one distributor amongst many.

The authors in question have both uploaded their work wide. This act is itself telling - looking at the Kobo footprint of the major book stuffers, for instance, it's notable that some of the most well known ones aren't on Kobo, or only have a very limited presence there. I'm reserving judgement on what this means about TOS violations.


----------



## David VanDyke

Ros_Jackson said:


> It should have no effect, because Amazon is just one distributor amongst many.
> 
> The authors in question have both uploaded their work wide. This act is itself telling - looking at the Kobo footprint of the major book stuffers, for instance, it's notable that some of the most well known ones aren't on Kobo, or only have a very limited presence there. I'm reserving judgement on what this means about TOS violations.


Without KU, stuffing is largely pointless.

It's all about the inflated payouts, not the sales.

If they had to compete in a normal retail market, "stuffing" would hardly be a thing.


----------



## AltMe

Ros_Jackson said:


> It should have no effect, because Amazon is just one distributor amongst many.


Amazon is 80% of the market.

The rest are many, but collectively few.


----------



## Starry_Knights

I just discovered that the author who is trying to trademark the words "Dragon Slayer" and "The Destroyer", is also trying to trademark the layout for book covers. It fits his book covers, but is so generic it would hit shedloads of other authors' covers.

You can read about it on this

__
https://www.reddit.com/r/906fln/is_michaelscott_earle_aiming_to_trademark_the/

and the diagram of the cover layout is here: https://i.redd.it/our22v462xa11.png

This just seems...crazy unnecessary?


----------



## David VanDyke

Lilly_Frost said:


> I just discovered that the author who is trying to trademark the words "Dragon Slayer" and "The Destroyer", is also trying to trademark the layout for book covers. It fits his book covers, but is so generic it would hit shedloads of other authors' covers.
> 
> You can read about it on this
> 
> __
> https://www.reddit.com/r/906fln/is_michaelscott_earle_aiming_to_trademark_the/
> 
> and the diagram of the cover layout is here: https://i.redd.it/our22v462xa11.png
> 
> This just seems...crazy unnecessary?


One would think so. Yet, it could be done. Apple trademarked the shape of their iPhone, and successfully depended it.


----------



## Mike_Kraus

I was *just* coming here to post about that. There's so much prior art for that design (I've got multiple covers with that exact design), but given what happened with "cocky" we need someone out in front of this to beat it down.


----------



## Rick Gualtieri

Here's the link to USPTO filing: http://tsdr.uspto.gov/#caseNumber=88026770&caseType=SERIAL_NO&searchType=statusSearch

But yeah. I hope this is a wake up call to anyone who's been defending this guy. He's toxic to the author community as a whole.


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## My_Txxxx_a$$_Left_Too

Content removed due to TOS Change of 2018. I do not agree to the terms.


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## C. Gockel

It gets worse: http://tsdr.uspto.gov/#caseNumber=88026770&caseType=SERIAL_NO&searchType=statusSearch

Does SFWA have anyone on staff to go after this nonsense? I would gladly pitch in to hire a lawyer to fill out the paperwork.


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## My_Txxxx_a$$_Left_Too

Content removed due to TOS Change of 2018. I do not agree to the terms.


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## My_Txxxx_a$$_Left_Too

Content removed due to TOS Change of 2018. I do not agree to the terms.


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## My_Txxxx_a$$_Left_Too

Content removed due to TOS Change of 2018. I do not agree to the terms.


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## My_Txxxx_a$$_Left_Too

Content removed due to TOS Change of 2018. I do not agree to the terms.


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## Hoop

Thoralene said:


> One of the major SFF self-publishers that had their Amazon account suspended yesterday also had multiple trademark applications open for some fairly common words and phrases. If this suspension at Amazon holds (big IF, I realize), wondering what the status of those applications might be? Hoping they'll be dead in the water.


The US Patent Office doesn't give a sh*t about what Amazon does.
It just looks at patent requests, looks to see if anyone has protested them, and does or doesn't approve the filing.
The USPTO is in no way connected to Amazon or any other retailer.


----------



## KelliWolfe

WasAnn said:


> This one is for the words "The Destroyer" in all fonts and designs. (He has another with the style of his books, but this one is just for the words themselves.)
> 
> Case Number: 87954851
> 
> Please file! A quick search revealed hundreds of books that will be impacted.


Remo Williams is gonna be pissed!


----------



## Taking my troll a$$ outta here

blubarry said:


> I suspect most of these were filed before the banning (I know Tamer, Destroyer, and Dragon Slayer were), but the timing doesn't help his cause with fans and other authors. Casual fans might not normally care, but having a reddit thread about this in this particular genre will draw attention to their core readers.
> 
> New authors - don't do this. Avoid people who think this is okay.
> 
> _Edited in keeping with our "WHOA" policy. Drop me a PM if you have any questions. - Becca_


This is the book cover format the author is trying to claim exclusive rights to.


----------



## Rick Gualtieri

blubarry said:


> All the UF with women holding swords will be fine, I'm sure. He's just protecting his brand.


This isn't a brand, it's the most generic of cover design concepts.


----------



## Rick Gualtieri

blubarry said:


> This is a terrible thing to do to authors and cover designers. The "protect his brand" was aimed at those who might defend his actions and meant as sarcasm. I'm sorry it didn't come across better.


Ah, gotcha.

Sorry, this whole thing has me a bit twitchy.


----------



## Taking my troll a$$ outta here

Content removed due to TOS Change of 2018. I do not agree to the terms.
Many formally active members now participate in discussions HERE.
Since board ownership changed hands, the email address I used to sign up has been spammed with fishing emails and scummy advertisements. In addition, the forum is now packed with equally offensive ads within every thread. This place has become a sleezy spam trap. It is no longer a safe community.


----------



## 3rotic

blubarry said:


> Certainly, his timing was a mistake given his ban.


I think this timing is rather delicious, actually.


----------



## BGArcher

I was very much a whataboutism person when it came to some of the people who got banned, but this trademark stuff is total bs. There's no reason to do this.

_Edited in keeping with our "WHOA" policy. Drop me a PM if you have any questions. - Becca_


----------



## Taking my troll a$$ outta here

blubarry said:


> It has me angry. Knowing what he had been ranking and the kind of money that suggested, he probably thought no one would have the funds to challenge him. It's the same as with Cocky, but in this case, he filed multiple trademarks, several single words, all of which will take quite a bit to challenge. While the uproar over trademarking single words has somewhat moved on, I think he miscalculated with this. Certainly, his timing was a mistake given his ban.


Me too. Legal or not, I feel those who are going to these lengths to "protect their brand" 1) do not understand what a brand actually is, and 2)are flipping the bird to the entire author community. Legal or not, and I know business is business, but your behavior defines you. Authors can do this kind of thing if they want, but they need to understand they are not free from the consequences of those actions. Do your thing, sure, but you cannot control the narrative after the fact.


----------



## Ros_Jackson

Prior art could include Duncan McGeary's Star Axe (1980). https://www.goodreads.com/book/show/3158212-star-axe and some versions of David Gemmell's Legend: https://www.goodreads.com/book/show/618177.Legend .


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## Becca Mills

Stepping in with a reminder that we don't hash out other forums'/groups' issues here. A few posts have been edited or removed.


----------



## Aaronhodges

Haha YES! I was immediately reminded of David Gemmells Legend cover!


Ros_Jackson said:


> Prior art could include Duncan McGeary's Star Axe (1980). https://www.goodreads.com/book/show/3158212-star-axe and some versions of David Gemmell's Legend: https://www.goodreads.com/book/show/618177.Legend .


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## My_Txxxx_a$$_Left_Too

Content removed due to TOS Change of 2018. I do not agree to the terms.


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## John Van Stry

Look at the specimens attached to the file please. The title on each is highly stylistic. 
https://tsdrsec.uspto.gov/ts/cd/casedoc/sn88026770/FTK20180709083248/3/webcontent?scale=1
https://tsdrsec.uspto.gov/ts/cd/casedoc/sn88026770/FTK20180709083248/5/webcontent?scale=1
http://tsdr.uspto.gov/documentviewer?caseId=sn88026770&docId=FTK20180709083248#docIndex=1&page=1

I don't think he's trying to trademark all covers, just ones that use his stylistic font and the cover layout that he uses in each particular case. The basic cover design in the filing isn't what he's trying to trademark, that's just the layout over which he puts the specific fonts and format.

Really people, read the whole thing.


----------



## Rick Gualtieri

John Van Stry said:


> Look at the specimens attached to the file please. The title on each is highly stylistic.
> https://tsdrsec.uspto.gov/ts/cd/casedoc/sn88026770/FTK20180709083248/3/webcontent?scale=1
> https://tsdrsec.uspto.gov/ts/cd/casedoc/sn88026770/FTK20180709083248/5/webcontent?scale=1
> http://tsdr.uspto.gov/documentviewer?caseId=sn88026770&docId=FTK20180709083248#docIndex=1&page=1
> 
> I don't think he's trying to trademark all covers, just ones that use his stylistic font and the cover layout that he uses in each particular case. The basic cover design in the filing isn't what he's trying to trademark, that's just the layout over which he puts the specific fonts and format.
> 
> Really people, read the whole thing.


I notice you kind of conveniently only linked to two of the same series images. Yet he appears to have at least four series with different font treatements listed if you bother to go through the whole thing as you suggested.

That suggests to me a claim that's reaching much farther than simply trying to protect one stylized font.


----------



## Ros_Jackson

WasAnn said:


> Already filed for this one. You can file very quickly using screenshots of books impacted. It will take all of five minutes for you to find everything you need.


What's the link you use to file initial opposition?


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## My_Txxxx_a$$_Left_Too

Content removed due to TOS Change of 2018. I do not agree to the terms.


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## My_Txxxx_a$$_Left_Too

Content removed due to TOS Change of 2018. I do not agree to the terms.


----------



## BGArcher

Becca Mills said:


> Stepping in with a reminder that we don't hash out other forums'/groups' issues here. A few posts have been edited or removed.


My Bad  Curiosity and all that.


----------



## John Van Stry

Mind you I am currently suing one of those 'nefarious authors' for copyright infringement on one of my performing series, so I know where he's coming from.


----------



## Michaela Strong

Looks like someone copy pasted the cockygate defense.


----------



## Desert Rose

Wouldn't filings for his specific series logos cover that problem, without having to attempt to trademark a very common cover layout?

Mostly, I'm amazed by how many readers apparently don't even look at a book's author when attempting to find more books by that author. Though I suppose it doesn't help when you can search for an author on every major bookstore, and have the first page filled with books not by that author.

_Edited to remove quote from a post that's been deleted. Drop me a PM if you have any questions. - Becca_


----------



## Mike_Kraus

Copyright infringement has nothing to do with trademark infringement. Two completely separate things. You don't need to file a trademark to go after copyright infringers, which is what he seems to be implying. If someone released a book in his universe with his characters and such, he could sue and win based off of copyright infringement. What he's attempting to do, based on the factual information given in his TM application and not the emotional pleas in his reply, is trademark a generic cover design that has more prior art than you can shake a telephone pole at.

That aside, his reply of "I won't sue, honest, trust me" rings hollow for a number of reasons, chief among them that owners of a trademark are obligated to legally protect it, lest they lose it.

This is ridiculous on all new levels and makes "cockygate" seem tame by comparison.


----------



## sela

John Van Stry said:


> Mind you I am currently suing one of those 'nefarious authors' for copyright infringement on one of my performing series, so I know where he's coming from.


Since you brought it up, care to elaborate on this?


----------



## GP Hudson

Seems like a waste of time for him after Amazon's latest purge.... I will say that that I'd be surprised if he was granted that trademark. There must be millions of examples of prior work predating his. Even if he did, good luck enforcing it. Waste of time and money IMHO, not to mention all the bad blood it is generating for him. Karma is a B***

_Edited to remove quote from post that's been deleted. Drop me a PM if you have any questions. - Becca_


----------



## KelliWolfe

There are already "The Destroyer" and "Dragonslayer" series that predate his by several decades. Maybe someone should sue...


----------



## Becca Mills

John Van Stry, as I said in the other thread where this is being discussed, we can't have the quotation from the TMing author (which I've just deleted from this thread) if it came from a private communication from him to you. He needs to have posted it publicly somewhere. If we can't all see that he really did say what's being attributed to him, it's not allowable under our hearsay rule. The author is welcome to come here and share his reasoning with us himself. We will all be civil. Ahem <waves yellow snowball around>.


----------



## Ros_Jackson

WasAnn said:


> Just google Trademark protest. It's the first or second one.


Thanks. It's here https://estta.uspto.gov/filing-type.jsp for anyone else looking for it.


----------



## Rick Gualtieri

I really am trying to understand the logic here.

Person A trademarks "Cocky", resulting in the author community banding together against them in an unprecedented tidal wave of support for those affected. 

Person B looks at the sheer mountain of disdain heaped upon Person A and apparently says, "I can top that. Hold my beer. "


----------



## Lydniz

Rick Gualtieri said:


> I really am trying to understand the logic here.
> 
> Person A trademarks "Cocky", resulting in the author community banding together against them in an unprecedented tidal wave of support for those affected.
> 
> Person B looks at the sheer mountain of disdain heaped upon Person A and apparently says, "I can top that. Hold my beer. "


----------



## Mike_Kraus

Thoralene said:


> Just write good books and make 'em look pretty. Plenty of pie to go around.


So much this. The writing biz isn't a zero sum game. If people fall in love with your books they want to read more, and that doesn't come at a cost to someone else.


----------



## Taking my troll a$$ outta here

Dragovian said:


> Wouldn't filings for his specific series logos cover that problem, without having to attempt to trademark a very common cover layout?
> 
> Mostly, I'm amazed by how many readers apparently don't even look at a book's author when attempting to find more books by that author. Though I suppose it doesn't help when you can search for an author on every major bookstore, and have the first page filled with books not by that author.
> 
> _Edited to remove quote from a post that's been deleted. Drop me a PM if you have any questions. - Becca_


To TM a logo that uses a font, he would have to own the font or have permission of the font creator. One of the outrageous points of the Cocky TM case is that the author did not have the legal right to TM the font; the license specifically stated the font could not be used in that manner, as the font artist publicly confirmed.


----------



## Taking my troll a$$ outta here

Content removed due to TOS Change of 2018. I do not agree to the terms.
Many formally active members now participate in discussions HERE.
Since board ownership changed hands, the email address I used to sign up has been spammed with fishing emails and scummy advertisements. In addition, the forum is now packed with equally offensive ads within every thread. This place has become a sleezy spam trap. It is no longer a safe community.


----------



## Becca Mills

EB said:


> *Catches yellow snowball before it nails me in the face* &#128540;
> 
> Thank you for working to keep the thread open. &#128077;


 

<passes over the hand-sanitizer>


----------



## Starry_Knights

Rick Gualtieri said:


> I really am trying to understand the logic here.
> 
> Person A trademarks "Cocky", resulting in the author community banding together against them in an unprecedented tidal wave of support for those affected.
> 
> Person B looks at the sheer mountain of disdain heaped upon Person A and apparently says, "I can top that. Hold my beer. "


You could almost say it was a Cocky move or something.


----------



## sela

The thing that gets me about the trademark fiasco is this:

Not even the BIGGEST AUTHORS IN THE WORLD MAKING MILLIONS or their publishers have trademarked book cover layout or common words that appear in titles.

ETA: please correct me if I'm mistaken.


----------



## Elizabeth S.

WasAnn said:


> It takes nothing more than a few minutes to challenge them
> 
> These are in the works...NOT YET APPROVED. If we don't file challenges now, then yes, it will cost arms and legs later. Right now, it's five minutes of your time.


It's better for people to coordinate who is going to file and to please, PLEASE take more than five minutes putting together a letter. You need to include good evidence.

Kevin Kneupper posted some tips for filing a protest: https://jamigold.com/2018/05/how-to-track-and-fight-bad-trademarks-guest-kevin-kneupper/

From that link:



> Basically can get them all flagged as spam if there are a ton of people all protesting at once. Best to start a thread, get everyone in there, and one person files the best evidence under the page limits.


----------



## 75814

The press has picked up on this now. Cockygate ended up angering not only authors but readers as well. This author has just killed any chance of recovering his career after his Amazon ban.


----------



## Guest

Rick Gualtieri said:


> I really am trying to understand the logic here.
> 
> Person A trademarks "Cocky", resulting in the author community banding together against them in an unprecedented tidal wave of support for those affected.
> 
> Person B looks at the sheer mountain of disdain heaped upon Person A and apparently says, "I can top that. Hold my beer. "


  &#128077; &#129315;


----------



## KelliWolfe

sela said:


> The thing that gets me about the trademark fiasco is this:
> 
> Not even the BIGGEST AUTHORS IN THE WORLD MAKING MILLIONS or their publishers have trademarked book cover layout or common words that appear in titles.
> 
> ETA: please correct me if I'm mistaken.


With the freedom to write what you want and publish where and how you want comes the freedom to engage in idiotic, self-destructive behavior as the mood strikes you. Big publishers and million dollar authors, however, have stodgy old lawyers who try to keep them from engaging in asinine antics like these.


----------



## Patty Jansen

KelliWolfe said:


> With the freedom to write what you want and publish where and how you want comes the freedom to engage in idiotic, self-destructive behavior as the mood strikes you. Big publishers and million dollar authors, however, have stodgy old lawyers who try to keep them from engaging in asinine antics like these.


WHERE IS THAT LIKE BUTTON!


----------



## JWright

I just read the Reddit thread mentioned previously.  There is some interesting comments by someone who says they are an intellectual property lawyer that I did find enlightening.


----------



## Jim Johnson

Thoralene said:


> Just write good books and make 'em look pretty. Plenty of pie to go around.


Need to print this on a banner ad and pay enough to leave it up on kboards forever.


----------



## Becca Mills

No insults aimed at the would-be trademarker, folks. I've deleted several already. Those who persist on that front will be banned from the thread.


----------



## Guest

Becca Mills said:


> No insults aimed at the would-be trademarker, folks. I've deleted several already. Those who persist on that front will be banned from the thread.


Oops, sorry. One of those was me  -- but just once; I'm not a repeat offender.


----------



## unkownwriter

Rick Gualtieri said:


> I really am trying to understand the logic here.
> 
> Person A trademarks "Cocky", resulting in the author community banding together against them in an unprecedented tidal wave of support for those affected.
> 
> Person B looks at the sheer mountain of disdain heaped upon Person A and apparently says, "I can top that. Hold my beer. "


Rick, I think I love you.* That's the best laugh I've had in days. And that's sayin' something.

*In a totally platonic, I'm old enough to be your mother sort of way, of course.



> I hope this is a wake up call to anyone who's been defending this guy. He's toxic to the author community as a whole.


Some aren't getting the message. Just protectin' his brand, bruh. It was dumb when Faleena tried it, still dumb today.


----------



## OnlyTheGrotesqueKnow

Lilly_Frost said:


> You could almost say it was a Cocky move or something.


That's whats called being on point...


----------



## KelliWolfe

OnlyTheGrotesqueKnow said:


> That's whats called being on point...


So to speak...


----------



## AltMe

Just as a matter of interest, was the cover trademark filed before or after he was nuked?


----------



## Starry_Knights

TimothyEllis said:


> Just as a matter of interest, was the cover trademark filed before or after he was nuked?


July 5, so about 2 weeks before.


----------



## AltMe

Lilly_Frost said:


> July 5, so about 2 weeks before.


Interesting. Thanks.

Now I wonder if Amazon saw this, came to the conclusion if he got the trademark it would cause them a world of hurt in the form of 1000's of take down notices, and all the appeals after, and spurred them to crawl up his 'account's' arse with a microscope, looking for some way of shutting him down. Which they apparently found. Or it was just one last straw with them.

Without books showing release dates, he's going to have a much harder time getting all his trademarks. And since he was in KU, going wide will show release dates after the trademark applications. If anyone is challenging this one, some research as to his wide presence is needed, so you can counter with release dates which are different to the ones in his application, and also with his application dates no longer being current since the books are not there any more.



Rick Gualtieri said:


> Person B looks at the sheer mountain of disdain heaped upon Person A and apparently says, "I can top that. Hold my beer. "


lol. It makes about as much sense as an explanation as anything else does.


----------



## Rick Gualtieri

TimothyEllis said:


> Interesting. Thanks.
> 
> Now I wonder if Amazon saw this, came to the conclusion if he got the trademark it would cause them a world of hurt in the form of 1000's of take down notices, and all the appeals after, and spurred them to crawl up his 'account's' arse with a microscope, looking for some way of shutting him down. Which they apparently found. Or it was just one last straw with them.


I kinda sincerely doubt that. Not their circus, not their monkeys in this case.

That strikes me as just too bizarre a series of events.


----------



## AltMe

Rick Gualtieri said:


> That strikes me as just too bizarre a series of events.


It's how I'd write it.


----------



## Fel Beasley

Question: 

So I showed this to my husband, and he pointed out that it said illustration in the description of the mark. Does that mean photo manipulative covers aren't part of this? Only covers with illustrated art and then the layout?

I ask because if people are filing contest letters, but are showing photo manipulated covers and not illustrated, would the TM office just dismiss that evidence since it's not what is being trademarked?

I haven't, here or on FB, seen anyone mention the specific illustration aspect of the description. (Didn't even notice it before and I've been following this all day. GG Hubby.)

Anyone know?


----------



## My_Txxxx_a$$_Left_Too

Content removed due to TOS Change of 2018. I do not agree to the terms.


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## Fel Beasley

WasAnn said:


> Not all of his are pure illustration, but also some photo manip. In general terms, illustration simply means picture. Usually if someone on a TM or copyright is looking to be specific, they further identify what they mean by illustration...painted photo, etc. His is far too generic and covers essentially any image of a human produced by whatever means.


Okay, good to know. Thank you!


----------



## Starry_Knights

HopelessFanatic said:


> Question:
> 
> So I showed this to my husband, and he pointed out that it said illustration in the description of the mark. Does that mean photo manipulative covers aren't part of this? Only covers with illustrated art and then the layout?
> 
> I ask because if people are filing contest letters, but are showing photo manipulated covers and not illustrated, would the TM office just dismiss that evidence since it's not what is being trademarked?
> 
> I haven't, here or on FB, seen anyone mention the specific illustration aspect of the description. (Didn't even notice it before and I've been following this all day. GG Hubby.)
> 
> Anyone know?




A painted cover like this?


----------



## Becca Mills

I've deleted a post here. Book Cat, insults to the authors under discussion are not permitted. Nor is further discussion of material a moderator has seen fit to remove.


----------



## RPatton

sela said:


> The thing that gets me about the trademark fiasco is this:
> 
> Not even the BIGGEST AUTHORS IN THE WORLD MAKING MILLIONS or their publishers have trademarked book cover layout or common words that appear in titles.
> 
> ETA: please correct me if I'm mistaken.


Okay, so because I am a complete idiot and jump into any rabbit hole I can find...

The few times (and it is very much few) where something book related is trademarked is when it because recognized by a random person on the street. Breakfast at Tiffany's, To Kill a Mocking Bird, The Hardy Boys. What happened in these cases is that everything derived from the source propelled it into the popular culture. And though the original source (something about the book) is trademarked, it's not really. It's just that it protects everything else and though technically it doesn't protect the book, the argument could (usually successfully) be made that it is damaging the entirety of the brand/trademark.

There's a reason traditional publishers don't do stuff like this until after a property has achieved secondary meaning. The Lanham Act does protect titles that aren't registered. Why go through the cost and tedium of registering everything when there are laws in place that will protect them. However, in order to get that protection, you really have to deserve it. And in almost all of these misguided attempts to trademark titles under the guise of trademarking a series, wouldn't likely deserve it because their brand isn't so recognized that anything mimicking it could a) confuse potential buyers or b) infringe upon a carefully constructed brand enough to cause damage.

What's worse in my mind is that this rash of trademarking things reflects poorly on independent/self publishers as a whole. Every action that someone sees from an individual is usually applied to the group. As much as we'd like that not to be true, it's just how our brains work. We categorize things based upon either our own experience or what we learn from others. If we didn't, our we'd be jibbering idiots in the corner of a room rocking back and forth.


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## unkownwriter

> . . . we'd be jibbering idiots in the corner of a room rocking back and forth.


Sometimes I wonder...

Like with the current state of our political reality, most days I feel like I've woken up in Bizarro World. All I want to know is, where's the exit?


----------



## ........

I wonder how many more times we'll hear "just protecting my brand" before all this ends?

I don't believe for one second that any harm, financial or otherwise has or was happening to these authors making these trademark moves. 

The simple answer is that they're part of the same group, someone in there had an idea and a few of them are running with it to the detriment of other authors.

We have a very old system smashing up against new moves it wasn't designed to handle. It used to be difficult to make a product, get it into the world, establish yourself in the mind of the consumer. All these hard steps before you could get your trademark.

The trademark office, the process and the legislation was never prepared for digital titles.

I keep hoping the good thing to come out of this might be trademark reform but then I look over at patents and that has been a mire for decades. 

MSE has made some public statements that you can find it you care to search (on Litrpg forum and other places). It's the same stuff - protecting my work. Apparently one of the drivers was readers saying some series looked like his. Not that they bought it accidentally or it cost him any earnings - just it looked similar. 

Hopefully all the letters of protest/opposition will smack these things down and the members of that group who seem to be neck-deep in all this will stop.


----------



## Used To Be BH

........ said:


> I wonder how many more times we'll hear "just protecting my brand" before all this ends?
> 
> I don't believe for one second that any harm, financial or otherwise has or was happening to these authors making these trademark moves.
> 
> The simple answer is that they're part of the same group, someone in there had an idea and a few of them are running with it to the detriment of other authors.
> 
> We have a very old system smashing up against new moves it wasn't designed to handle. It used to be difficult to make a product, get it into the world, establish yourself in the mind of the consumer. All these hard steps before you could get your trademark.
> 
> The trademark office, the process and the legislation was never prepared for digital titles.
> 
> I keep hoping the good thing to come out of this might be trademark reform but then I look over at patents and that has been a mire for decades.
> 
> MSE has made some public statements that you can find it you care to search (on Litrpg forum and other places). It's the same stuff - protecting my work. Apparently one of the drivers was readers saying some series looked like his. Not that they bought it accidentally or it cost him any earnings - just it looked similar.
> 
> Hopefully all the letters of protest/opposition will smack these things down and the members of that group who seem to be neck-deep in all this will stop.


This whole situation has the potential to blow up the trademark office. Inevitably, if a few misguided attempts to trademark something in relatively general use succeed, other, more sensible people may feel the need to trademark something just to prevent covers or titles they're already using from being trademarked out from under them. Imagine what would happen if every indie author trademarked his or her series name. There are thousands of indie series out there (let alone all the trad ones that follow suit to avoid being left out in the cold). If cover designs are thrown into the mix, how many patterns are there that would be the subject of trademark applications? Even if the examiners rejected every single one of the applications, that would still consume more time than they probably have.


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## KelliWolfe

What you end up with is the same situation as when the [EXPLETIVE DELETED] [EXPLETIVE DELETED] [EXPLETIVE DELETED] [EXPLETIVE DELETED] people at the patent office started handing out software patents in the 90s, with the majority of the officials having no clue about how software worked or anything about the prior art in the industry, and it turns into a huge [EXPLETIVE DELETED] [EXPLETIVE DELETED] mess for everyone who doesn't have Scrooge McDuck money bins to pay for lawyers.


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## Ros_Jackson

Bill Hiatt said:


> This whole situation has the potential to blow up the trademark office. Inevitably, if a few misguided attempts to trademark something in relatively general use succeed, other, more sensible people may feel the need to trademark something just to prevent covers or titles they're already using from being trademarked out from under them. Imagine what would happen if every indie author trademarked his or her series name. There are thousands of indie series out there (let alone all the trad ones that follow suit to avoid being left out in the cold). If cover designs are thrown into the mix, how many patterns are there that would be the subject of trademark applications? Even if the examiners rejected every single one of the applications, that would still consume more time than they probably have.


Maybe they'll charge more and employ a few extra people? Unless there are statutory reasons for the price, there's an element here of supply and demand and one small group of authors have suddenly brought more attention to trademarks and made them harder to administer.


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## PhoenixS

Being pedantic here, not editorializing, Jordan's Conan cover would not violate either of MSE's proposed TMs.

The layout would need to have CONAN The Destroyer all at the top, and Jordan's name at the bottom. Possibly it would even require it to read The Destroyer CONAN at the top, depending on interpretation of what the slash means.

And Conan is the series title. The Destroyer is the title of a book in the series, just like The Barbarian, The Magnificent, The Victorious, etc are. So The Destroyer wouldn't violate the TM since it's not a series title.

Let's be sure we're providing like examples when we write our challenge letters.


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## Steve Voelker

........ said:


> I wonder how many more times we'll hear "just protecting my brand" before all this ends?
> 
> I don't believe for one second that any harm, financial or otherwise has or was happening to these authors making these trademark moves.


I can tell you for a fact that this is not true. We know that Amazon removed some titles after trumped up TM claims. I bet those authors saw some financial harm when their books disappeared.

I know of quite a few authors who filed for trademarks as a way to protect themselves. When you see people being granted questionable trademarks and then using them to strong-arm their competitors out of the market, it is only natural to want to protect yourself, especially when your books are your livelihood. Even some of the filings that seem the worst might be coming from someone who is legitimately afraid that someone else is going to come along and TM their books out from under them.

The real problem is that many of the TMs never should have been granted in the first place. If we could trust the trademark office not to grant unwarranted TMs, then we wouldn't see so many authors rushing blindly into the process because they think it is the only way to protect themselves.

Have there been a bunch of totally ridiculous filings lately? Sure. But to claim every author who has ever filed a trademark application is doing it unjustly is incorrect and unnecessary.


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## Jena H

........ said:


> I don't believe for one second that any harm, financial or otherwise has or was happening to these authors making these trademark moves.





Steve Voelker said:


> *I can tell you for a fact that this is not true. We know that Amazon removed some titles after trumped up TM claims. I bet those authors saw some financial harm when their books disappeared.
> *
> I know of quite a few authors who filed for trademarks as a way to protect themselves. When you see people being granted questionable trademarks and then using them to strong-arm their competitors out of the market, it is only natural to want to protect yourself, especially when your books are your livelihood. Even some of the filings that seem the worst might be coming from someone who is legitimately afraid that someone else is going to come along and TM their books out from under them.
> 
> The real problem is that many of the TMs never should have been granted in the first place. If we could trust the trademark office not to grant unwarranted TMs, then we wouldn't see so many authors rushing blindly into the process because they think it is the only way to protect themselves.
> 
> Have there been a bunch of totally ridiculous filings lately? Sure. But to claim every author who has ever filed a trademark application is doing it unjustly is incorrect and unnecessary.


I thought what ....... meant was that it's doubtful that harm was done to the authors who filed TM claims. Certainly harm was done to other authors _because_ of the TM, but was the originating author truly adversely affected to begin with??


----------



## sela

Steve Voelker said:


> I know of quite a few authors who filed for trademarks as a way to protect themselves. When you see people being granted questionable trademarks and then using them to strong-arm their competitors out of the market, it is only natural to want to protect yourself, especially when your books are your livelihood. Even some of the filings that seem the worst might be coming from someone who is legitimately afraid that someone else is going to come along and TM their books out from under them.
> 
> The real problem is that many of the TMs never should have been granted in the first place. If we could trust the trademark office not to grant unwarranted TMs, then we wouldn't see so many authors rushing blindly into the process because they think it is the only way to protect themselves.
> 
> Have there been a bunch of totally ridiculous filings lately? Sure. But to claim every author who has ever filed a trademark application is doing it unjustly is incorrect and unnecessary.


THE BIGGEST NAMES IN THE PUBLISHING BUSINESS - THE BIGGEST IMPRINTS - HAVE NOT FILED TRADEMARKS FOR THIER COVERS OR TITLES.

What is going on with some in the indie community? Do these people truly think they are the first, most recognized and most deserving of trademark protection for the word or layout that has been used dozens if not hundreds of times by other authors both before and _after_ them and WITHOUT ANY KNOWLEDGE OF THEIR VERY EXISTENCE?

Sheesh.

I was willing to grant that a series name could be reasonably protected by trademark, but seriously?

The mind boggles...


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## My_Txxxx_a$$_Left_Too

Content removed due to TOS Change of 2018. I do not agree to the terms.


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## JWright

If you are successful there will be copycats.  The recent 2 big trademark grabs come from people who have heavily relied on others work, series, titles, and covers themselves and then tried to claim they are the ones who are original and their readers can't tell the difference between their books and someone else's.  So it's okay for them to draw from others but no one can even remotely resemble them? Irony much?

And if any reader makes the mistake of buying the wrong book they can just ask for a refund.  Maybe next time check the author name.

It's all beyond ridiculous. 

I'm waiting for someone to claim the naked man chest as theirs.  No offense intended but many of those covers look nearly identical to me.  I would need to know the author I was looking for to be able to tell the difference between them.  Obviously writers and readers are still doing well here even when things look so similar. Science fiction and all the spaceships, they look a lot alike. We could go on and on, but that really isn't your brand. Using a generic series name isn't your brand either. 

Someone needs to sell these people a course on how to really build your brand and what that actually means.


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## Becca Mills

Steve Voelker said:


> I can tell you for a fact that this is not true. We know that Amazon removed some titles after trumped up TM claims. I bet those authors saw some financial harm when their books disappeared.
> 
> I know of quite a few authors who filed for trademarks as a way to protect themselves. When you see people being granted questionable trademarks and then using them to strong-arm their competitors out of the market, it is only natural to want to protect yourself, especially when your books are your livelihood. Even some of the filings that seem the worst might be coming from someone who is legitimately afraid that someone else is going to come along and TM their books out from under them.
> 
> The real problem is that many of the TMs never should have been granted in the first place. If we could trust the trademark office not to grant unwarranted TMs, then we wouldn't see so many authors rushing blindly into the process because they think it is the only way to protect themselves.
> 
> Have there been a bunch of totally ridiculous filings lately? Sure. But to claim every author who has ever filed a trademark application is doing it unjustly is incorrect and unnecessary.


I'm sure some people are motivated by genuine feelings of concern, Steve, but giving in to those feelings perpetuates and worsens the problem, potentially exponentially, IMO. This trademarking movement has the potential to sweep across indiedom like a virus.

Also, considering it through the lens of self interest ... every trademark an author owns is going to be a money pit, due to the need to spend decades defending the thing with pricey C&D letters or even lawsuits. You have to defend it consistently if you want it to still be valid when you feel you really need it, right? Well, if one has that kind of money to spend, I personally I think it'd be better to bank it to cover the _possible_ cost of defending one's books from suits brought by overly aggressive trademarkers, rather than taking on the certain and unending cost of suing people to defend one's own questionable trademarks.

Trademarking conservatively, rather than aggressively, seems better both for the community and for the author themself. That's my thinking, anyway.


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## Rick Gualtieri

sela said:


> THE BIGGEST NAMES IN THE PUBLISHING BUSINESS - THE BIGGEST IMPRINTS - HAVE NOT FILED TRADEMARKS FOR THIER COVERS OR TITLES.
> 
> What is going on with some in the indie community? Do these people truly think they are the first, most recognized and most deserving of trademark protection for the word or layout that has been used dozens if not hundreds of times by other authors both before and _after_ them and WITHOUT ANY KNOWLEDGE OF THEIR VERY EXISTENCE?
> 
> Sheesh.
> 
> I was willing to grant that a series name could be reasonably protected by trademark, but seriously?
> 
> The mind boggles...


This isn't a bad point to bring up. At the same time a TM application when done right and in the spirit of how it's intended is also fairly harmless to the community at large.

Ie if I want to TM my midlist series "The wacky werewolves of the planet Hjkrush", ultimately it might do little more than grant me a some piece of mind, but it also stands as harmless to anyone not full on copying that.

Of course we're not talking about people doing it "right" here. We're talking folks who look at the above and say "I should trademark werewolf and all covers where anyone has fangs and claws", and, well, that garbage has got to stop.


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## PhoenixS

WasAnn said:


> True, except that he has *another* TM application approved for consideration (but not yet assigned an investigator) for the words "The Destroyer." He has one for the word in a particular design, but *also* one for the words themselves...in any font, any color, for any usage. So....


The Destroyer TM application is for: Downloadable series of fiction books

http://tsdr.uspto.gov/#caseNumber=87954851&caseSearchType=US_APPLICATION&caseType=DEFAULT&searchType=statusSearch


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## Starry_Knights

From all my Reddit digging, it seems maybe the art department at Harper-Collins is aware of this now, and no doubt their legal department will be, too. Hopefully all of this will be crushed into nano-particles.


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## Rick Gualtieri

Lilly_Frost said:


> From all my Reddit digging, it seems maybe the art department at Harper-Collins is aware of this now, and no doubt their legal department will be, too. Hopefully all of this will be crushed into nano-particles.


I'll admit, I will be VERY interested to see if the SFWA or even HWA get involved in this like the RWA got involved (rightfully so) in Cockygate.


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## PhoenixS

Rick Gualtieri said:


> I'll admit, I will be VERY interested to see if the SFWA or even HWA get involved in this like the RWA got involved (rightfully so) in Cockygate.


They've already jumped on Marie Force's application for Quantum Series.
https://twitter.com/sfwa/status/1017130444381409280


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## My_Txxxx_a$$_Left_Too

Content removed due to TOS Change of 2018. I do not agree to the terms.


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## PhoenixS

WasAnn said:


> Yes, I read all of his current appliations. I should have been clearer. It's for books, but is not precise enough NOT to include other series with that in the name, or titles in other books. In short, it's for all series of downloadable books without respect to font or another author. It's insanity. There are over 900 books currently availabe in just the .com store that could run afoul based on that extremely paltry description.


I believe "Downloadable *series* of fiction books" is pretty specific. You can find it under Goods and Services on the application.

IME, CONAN The Destroyer would not violate the proposed TM. Chris Fox's Destroyer book would not violate the TM. No single title books would violate the TM.

I just want us sending apples to apples examples in our challenge letters.


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## Starry_Knights

PhoenixS said:


> I believe "Downloadable *series* of fiction books" is pretty specific. You can find it under Goods and Services on the application.
> 
> IME, CONAN The Destroyer would not violate the proposed TM. Chris Fox's Destroyer book would not violate the TM. No single title books would violate the TM.
> 
> I just want us sending apples to apples examples in our challenge letters.


But didn't "Cocky" have that wording also? And authors who had it in their title or keywords still had their books taken down by retailers when FH told them it was a trademarked term. Just because it won't stand up to scrutiny in a court of law doesn't mean it won't ruin people's livelihoods, because retailers aren't going to be bothered to comb through all the details.

Edit: used publisher instead of retailer

Lord.  Re-edited to spell retailer correctly. *shakes fist at middle-age*


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## Becca Mills

PhoenixS said:


> I believe "Downloadable *series* of fiction books" is pretty specific. You can find it under Goods and Services on the application.
> 
> IME, CONAN The Destroyer would not violate the proposed TM. Chris Fox's Destroyer book would not violate the TM. No single title books would violate the TM.


Are we really sure about this, not regarding "destroyer," specifically, but as a general principle? Couldn't a TM holder argue that using their series title in your individual book title represents an attempt to make your book seem like it's part of their series?

For instance, I'm pretty sure I couldn't get away with publishing a standalone, non-series book titled _Chicken Soup for the Urban Fantasy Lover's Soul_, or whatever. Even though I'm not using "chicken soup for the ___'s soul" as a _series_ title, my book's title would be a pretty clear attempt to piggyback on the trademarked series title. I suspect they could take me to court and win on that.

There's got to be a line in there somewhere, maybe having to do with the strength of the mark? Or how much of it you're using? Dunno. I think I'd want advice from a lawyer before using a trademarked term, even in a non-series title.

Edit: inserted a word for clarity


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## Used To Be BH

Tricky issue! Phoenix is probably right in terms of how a trademark examiner would see it, but Lilly and Becca are also probably right that once a mark is granted, the holder may try to enforce it in ways that aren't necessarily anticipated by the law.

It would probably be good to use series examples, but I think individual book examples do show prior use, that, especially in cases like the Jordan book, are fairly well-known. If someone else has a recognizable connection to particular words or imagery, even if not specifically as a series title, is it appropriate for someone else to trademark them for series purposes? I don't know, but it doesn't seem as if it should be.


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## PhoenixS

Lilly_Frost said:


> But didn't "Cocky" have that wording also? And authors who had it in their title or keywords still had their books taken down by publishers when FH told them it was a trademarked term. Just because it won't stand up to scrutiny in a court of law doesn't mean it won't ruin people's livelihoods, because retailers aren't going to be bothered to comb through all the details.


The Cocky TM had already been granted. These other TMs are only in application stage. A lot of folk are sending protest letters or at least readying them for when the requests hit the public protest stage, assuming they make it that far. Yes, Amazon over-reacted when it received the take-down requests. Yes, it's quite possible more authors who are granted TMs will over-reach as Faleena did. But right now, the TMs aren't granted. All I'm trying to encourage is sending professional letters of protest that address the actual elements we're challenging.



Becca Mills said:


> There's got to be a line in there somewhere, maybe having to do with the strength of the mark? Or how much of it you're using? Dunno.


Legal counsel is always helpful. Just be sure it's someone with a good understanding of the nuances of trademark law. Because it's not straightforward at all. Which is the reason Amazon reinstated challenged books so quickly, and why the Cocky lawsuit wasn't immediately resolved after the initial court hearing.

https://www.kboards.com/index.php/topic,263084.msg3673372.html#msg3673372

The former IP attorney paraphrased in the link above also said that highly popular brands are handled differently. So while you likely can't use Chicken Soup for the Soul or Star Wars or Dr. Who in a single title because of their immediate recognizability as well as a strong possibility of consumer confusion, less-well-affiliated brands won't matter.


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## My_Txxxx_a$$_Left_Too

Content removed due to TOS Change of 2018. I do not agree to the terms.


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## Becca Mills

blubarry said:


> Guess I know what the $20 I asked be refunded but haven't received when she shut down IASN went for.


Please locate reports of late/missing IASN refunds on Phoenix's thread about the closing: http://www.kboards.com/index.php/topic,264334.0.html. Such reports should not include allegations embezzlement.


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## RedFoxUF

If you do the research...you see exactly how TM enforcement is handled. Very broad brush. Everything is sued.


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## Becca Mills

This thread has been active for going on three months, and I daresay its hugeness has made it difficult to mine for information. So I've made a sort of table of contents of posts that struck me (subjectively, of course) as the kinds of things people might specifically want to find. I'll place a link to this post in the OP so people will be able to find it easily, even as it gets buried. If the thread continues to cover new terrain, I'll add more entries below. If you think I've missed something essential, or if you find an error, please feel free to drop me a PM. That said, I've tried to keep this short. There's a lot of super-interesting stuff in this thread I disciplined myself not to mention below, as I don't want a tool intended to assist manageability to itself become unmanageable.

*Information on filing a letter of protest against a TM application:*
_Overview:_ http://www.kboards.com/index.php/topic,263084.msg3691980.html#msg3691980, http://www.kboards.com/index.php/topic,263084.msg3662023.html#msg3662023
_Where and how to file:_ http://www.kboards.com/index.php/topic,263084.msg3661924.html#msg3661924
_Suggestions on what to include:_ http://www.kboards.com/index.php/topic,263084.msg3668065.html#msg3668065, http://www.kboards.com/index.php/topic,263084.msg3668148.html#msg3668148

*Attempts to grasp trademark law and procedures:*
http://www.kboards.com/index.php/topic,263084.msg3673372.html#msg3673372
http://www.kboards.com/index.php/topic,263084.msg3673376.html#msg3673376
http://www.kboards.com/index.php/topic,263084.msg3677591.html#msg3677591
http://www.kboards.com/index.php/topic,263084.msg3682162.html#msg3682162
http://www.kboards.com/index.php/topic,263084.msg3682640.html#msg3682640
http://www.kboards.com/index.php/topic,263084.msg3685279.html#msg3685279

*Where in the thread discussion of various other TMing efforts begins (listed alphabetically):*
_"big":_ http://www.kboards.com/index.php/topic,263084.msg3678426.html#msg3678426
_"dragon slayer," "destroyer," and others:_ http://www.kboards.com/index.php/topic,263084.msg3677420.html#msg3677420
_"embrace":_ http://www.kboards.com/index.php/topic,263084.msg3662876.html#msg3662876
_"forever":_ http://www.kboards.com/index.php/topic,263084.msg3668063.html#msg3668063
_Michael-Scott Earle cover trade dress:_ http://www.kboards.com/index.php/topic,263084.msg3691733.html#msg3691733
_"infinite":_ http://www.kboards.com/index.php/topic,263084.msg3677454.html#msg3677454
_"quantum series":_ http://www.kboards.com/index.php/topic,263084.msg3668850.html#msg3668850
_"rebellion":_ http://www.kboards.com/index.php/topic,263084.msg3662222.html#msg3662222
_"stargazer":_ http://www.kboards.com/index.php/topic,263084.msg3670768.html#msg3670768

*@cockybot:*
http://www.kboards.com/index.php/topic,263084.msg3662222.html#msg3662222
http://www.kboards.com/index.php/topic,263084.msg3670701.html#msg3670701
http://www.kboards.com/index.php/topic,263084.msg3670713.html#msg3670713 
http://www.kboards.com/index.php/topic,263084.msg3677486.html#msg3677486
http://www.kboards.com/index.php/topic,263084.msg3685334.html#msg3685334

*Legal actions:* 
http://www.kboards.com/index.php/topic,263084.msg3668850.html#msg3668850
http://www.kboards.com/index.php/topic,263084.msg3669209.html#msg3669209
http://www.kboards.com/index.php/topic,263084.msg3671325.html#msg3671325
http://www.kboards.com/index.php/topic,263084.msg3684566.html#msg3684566
http://www.kboards.com/index.php/topic,263084.msg3685145.html#msg3685145

*RWA involvement:*
http://www.kboards.com/index.php/topic,263084.msg3661677.html#msg3661677
http://www.kboards.com/index.php/topic,263084.msg3661340.html#msg3661340
http://www.kboards.com/index.php/topic,263084.msg3671087.html#msg3671087

*SFWA involvement:*
http://www.kboards.com/index.php/topic,263084.msg3692327.html#msg3692327


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## PhoenixS

***********

Comment removed to protect content and data from the over-reaching TOS of new forum owner VerticalScope.

VerticalScope claims rights to any content posted to this site as theirs to disseminate beyond this site in any way they see fit.

Read the Terms of Service, both before AND after you've registered. At the time of this post, the new, more egregious TOS is available to read only after you've registered.

KBoards was purchased by VerticalScope 7.5 years and 4000 posts after I joined. VerticalScope will not allow that existing content to be permanently deleted, despite the fact I did not and do not agree to granting the new owners the rights to my content. 

***********


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## RandomThings

This is why we need a like button. Thank you for compiling that list of links.


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## Becca Mills

Hey, it let me ignore my WIP for like an hour. #procrastination #level6unlocked


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## GP Hudson

Becca Mills said:


> This thread has been active for going on three months, and I daresay its hugeness has made it difficult to mine for information. So I've made a sort of table of contents of posts that struck me (subjectively, of course) as the kinds of things people might specifically want to find. I'll place a link to this post in the OP so people will be able to find it easily, even as it gets buried. If the thread continues to cover new terrain, I'll add more entries below. If you think I've missed something essential, or if you find an error, please feel free to drop me a PM. That said, I've tried to keep this short. There's a lot of super-interesting stuff in this thread I disciplined myself not to mention below, as I don't want a tool intended to assist manageability to itself become unmanageable.
> 
> *Information on filing a letter of protest against a TM application:*
> _Overview:_ http://www.kboards.com/index.php/topic,263084.msg3691980.html#msg3691980, http://www.kboards.com/index.php/topic,263084.msg3662023.html#msg3662023
> _Where and how to file:_ http://www.kboards.com/index.php/topic,263084.msg3661924.html#msg3661924
> _Suggestions on what to include:_ http://www.kboards.com/index.php/topic,263084.msg3668065.html#msg3668065, http://www.kboards.com/index.php/topic,263084.msg3668148.html#msg3668148
> 
> *Attempts to grasp trademark law and procedures:*
> http://www.kboards.com/index.php/topic,263084.msg3673372.html#msg3673372
> http://www.kboards.com/index.php/topic,263084.msg3673376.html#msg3673376
> http://www.kboards.com/index.php/topic,263084.msg3677591.html#msg3677591
> http://www.kboards.com/index.php/topic,263084.msg3682162.html#msg3682162
> http://www.kboards.com/index.php/topic,263084.msg3682640.html#msg3682640
> http://www.kboards.com/index.php/topic,263084.msg3685279.html#msg3685279
> 
> *Where in the thread discussion of various other TMing efforts begins (listed alphabetically):*
> _"big":_ http://www.kboards.com/index.php/topic,263084.msg3678426.html#msg3678426
> _"dragon slayer," "destroyer," and others:_ http://www.kboards.com/index.php/topic,263084.msg3677420.html#msg3677420
> _"embrace":_ http://www.kboards.com/index.php/topic,263084.msg3662876.html#msg3662876
> _"forever":_ http://www.kboards.com/index.php/topic,263084.msg3668063.html#msg3668063
> _Michael-Scott Earle cover trade dress:_ http://www.kboards.com/index.php/topic,263084.msg3691733.html#msg3691733
> _"infinite":_ http://www.kboards.com/index.php/topic,263084.msg3677454.html#msg3677454
> _"quantum series":_ http://www.kboards.com/index.php/topic,263084.msg3668850.html#msg3668850
> _"rebellion":_ http://www.kboards.com/index.php/topic,263084.msg3662222.html#msg3662222
> _"stargazer":_ http://www.kboards.com/index.php/topic,263084.msg3670768.html#msg3670768
> 
> *@cockybot:*
> http://www.kboards.com/index.php/topic,263084.msg3662222.html#msg3662222
> http://www.kboards.com/index.php/topic,263084.msg3670701.html#msg3670701
> http://www.kboards.com/index.php/topic,263084.msg3670713.html#msg3670713
> http://www.kboards.com/index.php/topic,263084.msg3677486.html#msg3677486
> http://www.kboards.com/index.php/topic,263084.msg3685334.html#msg3685334
> 
> *Legal actions:*
> http://www.kboards.com/index.php/topic,263084.msg3668850.html#msg3668850
> http://www.kboards.com/index.php/topic,263084.msg3669209.html#msg3669209
> http://www.kboards.com/index.php/topic,263084.msg3671325.html#msg3671325
> http://www.kboards.com/index.php/topic,263084.msg3684566.html#msg3684566
> http://www.kboards.com/index.php/topic,263084.msg3685145.html#msg3685145
> 
> *RWA involvement:*
> http://www.kboards.com/index.php/topic,263084.msg3661677.html#msg3661677
> http://www.kboards.com/index.php/topic,263084.msg3661340.html#msg3661340
> http://www.kboards.com/index.php/topic,263084.msg3671087.html#msg3671087
> 
> *SFWA involvement:*
> http://www.kboards.com/index.php/topic,263084.msg3692327.html#msg3692327


Thanks Becca, that's awesome!


----------



## PearlEarringLady

Becca Mills said:


> So I've made a sort of table of contents of posts that struck me (subjectively, of course) as the kinds of things people might specifically want to find.


That is heroic, Becca. Do you actually have a life outside this place, or do you live in the Kboards stationery cupboard?


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## Rick Gualtieri

Epic cheat sheet, Becca! Thank you!


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## Becca Mills

PaulineMRoss said:


> That is heroic, Becca. Do you actually have a life outside this place, or do you live in the Kboards stationery cupboard?


Betsy and Ann absolutely DO NOT have me wedged in a smoky crevasse.


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## Glis Moriarty

PaulineMRoss said:


> That is heroic, Becca. Do you live in the Kboards stationery cupboard?


.. under the stairs


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## Patty Jansen

blubarry said:


> Guess I know what the $20 I asked be refunded but haven't received when she shut down IASN went for.


I've received mine. Send them an email.

And also: wow. Pot >>> kettle.


----------



## ........

Steve Voelker said:


> I can tell you for a fact that this is not true. We know that Amazon removed some titles after trumped up TM claims. I bet those authors saw some financial harm when their books disappeared.
> 
> I know of quite a few authors who filed for trademarks as a way to protect themselves. When you see people being granted questionable trademarks and then using them to strong-arm their competitors out of the market, it is only natural to want to protect yourself, especially when your books are your livelihood. Even some of the filings that seem the worst might be coming from someone who is legitimately afraid that someone else is going to come along and TM their books out from under them.
> 
> The real problem is that many of the TMs never should have been granted in the first place. If we could trust the trademark office not to grant unwarranted TMs, then we wouldn't see so many authors rushing blindly into the process because they think it is the only way to protect themselves.
> 
> Have there been a bunch of totally ridiculous filings lately? Sure. But to claim every author who has ever filed a trademark application is doing it unjustly is incorrect and unnecessary.


I meant that I doubt Michael Scott Earle or Faleena Hopkins had suffered any financial harm.


----------



## ........

Michael Scott Earle just shared this with the note to share to other groups if you want to... I'm assuming this means it's okay to post here. If not, I apologise and please delete. His post:

Hey all.

I wanted to post a bit about the various Trade Mark stuff that is going on- mostly to address the trade dress TM that I filed, but also to talk a bit about my reputation and suspension.

Yesterday I received about 2,543 or so threatening PMs/emails about the trade dress TM. This is the one where I own the design of the cover.

At first, I replied to all of these with: "What is your problem? The TM application has all the specimens of my covers and fonts and such- I don't want my customers to be confused by other authors trying to copy my design titles, but it's not like I can sue every author in the world for having a dude on the cover with a weapon."

The response was "No, this is too broad. Also, I want you to die in a fire."

So I talked to my lawyer today. Ends up that he DID file it too broad. It isn't at all relegated to my specific fonts, etc... I asked him to pull that TM ASAP. Obviously, I don't want to go to war with the world- and authors should be able to have people with weapons on the cover. This thing would have never gone through the way it was. It was also an [Uranus] move, I totally agree and it wasn't my intent. My intent was to protect my brand.

I am still filing TMs for my series names. These are profitable series that are part of my brand. I've heard the arguments of "these are common words, you can't TM them!" and "This is just a cash grab by a loser author!" Those arguments aren't very useful. My series make me money, and I'm TMing a SERIES NAME. Not a word. Not an individual book title. You might think it is unfair that I'd want to TM them, but do you also think it's unfair that Twilight Saga, Game of Thrones, and Hunger Games are Trade Marked? Why can't an independent author trademark their series names? I'm not saying you all should applaud me, but I kind of doubt a traditional publishing house would be getting the same avalanche of hate I am.

"But a certain other author has filed C&Ds to take books off Amazon with a certain word on it! You'll do the same!"

Again- I'm filing for a series name. NOT A WORD OR A NOVEL TITLE. Chris Fox has a Destroyer novel, so does Shannon Mayer. I can't use my SERIES TM to take down their books. That's not how this works. There is currently another series named "The Destroyer" written by Warren Murphy. My lawyer feels that I might not get that TM because of that older series, but even if I do, I can't take that series down (nor would I want to) because it's way older than mine and a completely different genre. From what my lawyer has told me, TMs can't really be used to take down existing stuff. They just block new imitations that could confuse customers.

"So if you own the TM, no one can ever write a Dragon Slayer series? That's horrible."

No one can write a Twilight Saga, Game of Thrones, or Hunger Games series either. Look, despite a certain website you might have seen with a landscape of cleverly photo shopped "Dragon Slayer" covers intended to outrage you, I don't know of a single SERIES of books named Dragon Slayer that has ever been written. There might have been one back in the day, but I couldn't find a SERIES named that.

My books almost always hit sub 50 in the store when they are released. I'm one of the most successful independent authors in the world, and if no one has written a "Dragon Slayer" series in the last 70+ years, why would they want to write one now? Is there a chance they might want to coattail on my success? Confuse my customers and get extra sales? Has something like that ever happened before in the history of business? Yeah, these are common words in the fantasy genre, but they aren't that common- or there would have been dozens of Dragon Slayer series out there.

[...]

Anyway- share this in other groups if you want to. Thanks for reading.

_Based on initial reactions to this post, I've edited out the material not directly about Earle's trademarking decisions, lest the thread be derailed by other issues. Drop me a PM if you have any questions. - Becca_


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## Becca Mills

........, can you please supply a link to the place Earle posted that material? We want everyone to be able to see that people really did say/write the words that are attributed to them.

ETA: Okay, I see where this was posted. Since Earle explicitly invited sharing, I'll leave the material here for now for the moment -- we'll do some smoky-caves discussing. Please remember our prohibition on importing controversy from other groups. The focus should be on what Earle said, as shown here, not on what may be happening elsewhere surrounding his remarks. We'll see how it goes. Thanks.


----------



## ........

Becca Mills said:


> ........, can you please supply a link to the place Earle posted that material? We want everyone to be able to see that people really did say/write the words that are attributed to them.


It's inside the 20Booksto50K group. I could perhaps wrangle screenshots?


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## Atlantisatheart

........ said:


> It's inside the 20Booksto50K group. I could perhaps wrangle screenshots?


It's there Becca, I just saw it - posted an hour ago.


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## Becca Mills

........ said:


> It's inside the 20Booksto50K group. I could perhaps wrangle screenshots?


Thanks, but there's no need to request screenshots. I'm sure a number of people here are also members there and can confirm the material was copied completely and accurately.


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## Rick Gualtieri

Color me skeptical.


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## AltMe

M.E. said:


> Yesterday I received about 2,543 or so threatening PMs/emails about the trade dress TM. This is the one where I own the design of the cover.


That's sad. But at the same time, how could you not expect a backlash?



> So I talked to my lawyer today. Ends up that he DID file it too broad. It isn't at all relegated to my specific fonts, etc... I asked him to pull that TM ASAP. Obviously, I don't want to go to war with the world- and authors should be able to have people with weapons on the cover. This thing would have never gone through the way it was. It was also an [Uranus] move, I totally agree and it wasn't my intent. My intent was to protect my brand.


And this is why you get the backlash, by failing to make sure the application is perfect before you file it. This is the equivalent of not editing a book before releasing it.



> You might think it is unfair that I'd want to TM them, but do you also think it's unfair that Twilight Saga, Game of Thrones, and Hunger Games are Trade Marked? Why can't an independent author trademark their series names? I'm not saying you all should applaud me, but I kind of doubt a traditional publishing house would be getting the same avalanche of hate I am.


Yes, they would.

And those 3 are movies and tv, making them a totally different playing field. These are household names.



> My books almost always hit sub 50 in the store when they are released. I'm one of the most successful independent authors in the world


And yet, in reality, you are a total unknown. GoT, HG etc are household names. You're not.



> - I had spaces in my ebook formatting and space between paragraphs, but so do/did most major authors. Michael Anderle swore by putting the spaces in because his readers loved it. As far as a bunch of people have tested, extra spaces don't change page count.


MA did originally. He doesn't now. One of the reasons I didn't read his first book when it came out was the extra spacing. When I read the sample again recently, there was no extra spacing.

_Edited to remove material not on trademarking. Drop me a PM if you have any questions. - Becca_


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## AltMe

........ said:


> It's inside the 20Booksto50K group. I could perhaps wrangle screenshots?


20Books is a secret group. Taking screenshots might get you banned from it.


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## Rick Gualtieri

I’ll remind everyone that the last TM outrage (after Cocky but before this ... and my brain is melting right now so I can’t remember what the author’s name was), the author in question also cited “my lawyer did it” after the backlash began. 

ETA: it was for the word “forever”


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## Becca Mills

TimothyEllis said:


> 20Books is a secret group. Taking screenshots might get you banned from it.


I think ........ was saying they could ask permission to take screenshots ("could perhaps wrangle"), but as I said, not necessary.


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## AltMe

Becca Mills said:


> I think ........ was saying they could ask permission to take screenshots ("could perhaps wrangle"), but as I said, not necessary.


They would definitely have to ask Craig Martelle for permission.


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## KelliWolfe

Better to remain silent and be thought a fool than to speak and to remove all doubt.


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## Becca Mills

TimothyEllis said:


> They would definitely have to ask Craig Martelle for permission.


Yes, agreed -- sharing screenshots from private groups without permission is a no-no.


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## Ann in Arlington

PaulineMRoss said:


> That is heroic, Becca. Do you actually have a life outside this place, or do you live in the Kboards stationery cupboard?


We've promoted her from the cupboard under the stairs to Dudley's second bedroom.&#128518;&#128516;&#128580;&#128514;&#128513;&#128526;


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## Becca Mills

Ann in Arlington said:


> We've promoted her from the cupboard under the stairs to Dudley's second bedroom.&#128518;&#128516;&#128580;&#128514;&#128513;&#128526;


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## PearlEarringLady

Ann in Arlington said:


> We've promoted her from the cupboard under the stairs to Dudley's second bedroom.&#128518;&#128516;&#128580;&#128514;&#128513;&#128526;


LOL!


----------



## unkownwriter

KelliWolfe said:


> Better to remain silent and be thought a fool than to speak and to remove all doubt.


Yeah. But, it's his lawyer's fault, so...

Anyway, I read the original thing at 20bto50K, and as far as I can tell, the quoted post was spot on. I didn't do a line-by-line analysis, because I don't actually have time for that.

Becca, what are you going to do with all that space? And is there a window?


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## Patty Jansen

I know a few lawyers. They're not usually incompetent. In fact, they're very smart... at getting money out of their clients.

With this trademarking BS, there is only one group of winners: the lawyers, and they're laughing all the way to the bank.


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## 39416

I have never known a trademark lawyer who didn't first send a copy of the proposed application to the client, asking him to go over it and verify this is what he wants, before submitting it.


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## C. Gockel

Annie B said:


> Probably, the lawyer did. But the thing that is very clear here is that MSE and peeps like him don't understand what a trademark is, how it works, and how it is different from copyright. So... yeah. That ignorance is one of the reasons we're having this entire problem with TMing right now.


Agreed.

Also, I think that the American legal system is somewhat at fault. There is so much potential for abuse of trademark--as we've seen already. It can cost up to 20K to defend yourself successful against spurious trademark infringement claims.

In some countries, if a frivolous lawsuit is hurled against you the LAWYER who represents the person who brought the case forward has to pay the defendants legal fees. This cuts down on frivolous lawsuits.


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## Rick Gualtieri

blubarry said:


> I know quite a few lawyers too. Despite the stereotype, most lawyers are ethical and act at their client's direction. I have a hard time seeing a lawyer acting unilaterally on something like this.


There's also the fact that the previous filings were pretty specific (if over-reaching IMHO). Whereas this new one is a hail-mary pass for all the marbles.


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## lmgregory

........ said:


> No one can write a Twilight Saga, Game of Thrones, or Hunger Games series either.


This is probably a weird way to make my kboards debut, but what the heck.

I've been seeing the argument from some fans and authors (not here) that big series are always trademarked. Since r/fantasy had a list of the "top" fantasy series I thought I'd check, though I expected the theory to be right. It makes sense.

What I found was that of the top 11 series (I went 11 instead of 10 because Wheel of Time was robbed, but that's a tangent), 5 were trademarked (not including Game of Thrones, addressed below). Four had related merchandise and/or movie or tv shows. Only Joe Abercrombie had a trademark that appeared primarily related to his series (First Law). Brandon Sanderson has his name trademarked, but not The Stormlight Archive; Mistborn is, but Mistborn has a game related to it.

MSE listed three popular series and someone else mentioned that all were movies/tv shows. It appears more than that. I just went through the entire list of every trademark in relation to Hunger Games, Twilight Saga and Game of Thrones. Books are never mentioned. Hunger Games and Twilight Saga are trademarked in relation to band-aids though, so if you have an owie, they have you covered. Also Game of Thrones will let you get drunk, which might lead to the owie.

Game of Thrones is especially unique. First it's not the book series name. Second it's held by HBO, not George R.R. Martin.

A Song of Ice and Fire, the actual book series name and arguably the biggest selling fantasy series from a modern author? Not trademarked.

So it appears at least in fantasy, the genre most related to LitRPG that trademarking series names is not really a thing. Unless there are other merchandising opportunities.

It's entirely possible I missed something searching the USPTO. It wouldn't be the first mistake I've made. But I tried to be thorough.


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## Becca Mills

That's really interesting Imgregory -- thanks for sharing!

I can see how this happens. If I wrote a really, really, REALLY successful series and thought I might want to sell rights to make a RPG or something, a trademark would help make sure no one else created a RPG based on my series, claiming some of the money my RPG could've made. Movie studios think this way -- the lunch boxes, the action figures, the Halloween costumes, the phone skins, etc. You don't want someone else raking in some of the potential profit from revenue streams you're planning to exploit. But if you're just an author and have no plans to get into lunch boxes and Halloween costumes and so forth, maybe you don't care a whole lot if someone else makes such things based on your series. Yeah, they're piggybacking off your success, but they're not actually collecting dollars you were trying for because they're making things you have no plans to make because overseeing licensing for a lunch box empire is just not your dream.

That's my total-layperson way of thinking about it, anyway.


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## Tulonsae

Content removed due to TOS Change of 2018. I do not agree to the terms.


----------



## Becca Mills

Tulonsae said:


> Trademarks are supposed to be on existing products, not on products you're thinking about producing in the future. I think there's some sort of "reserve" thing in the Trademark system, though.


Yeah there is. Not sure how it works, but I remember seeing references to it. Maybe that's how the owners of major IPs expand into new areas of merchandising? I'm really not sure.

Lordy. All this stuff gives me a powerful way-above-my-pay-grade feeling.


----------



## Starry_Knights

lmgregory said:


> This is probably a weird way to make my kboards debut, but what the heck.
> 
> I've been seeing the argument from some fans and authors (not here) that big series are always trademarked. Since r/fantasy had a list of the "top" fantasy series I thought I'd check, though I expected the theory to be right. It makes sense.
> 
> What I found was that of the top 11 series (I went 11 instead of 10 because Wheel of Time was robbed, but that's a tangent), 5 were trademarked (not including Game of Thrones, addressed below). Four had related merchandise and/or movie or tv shows. Only Joe Abercrombie had a trademark that appeared primarily related to his series (First Law). Brandon Sanderson has his name trademarked, but not The Stormlight Archive; Mistborn is, but Mistborn has a game related to it.
> 
> MSE listed three popular series and someone else mentioned that all were movies/tv shows. It appears more than that. I just went through the entire list of every trademark in relation to Hunger Games, Twilight Saga and Game of Thrones. Books are never mentioned. Hunger Games and Twilight Saga are trademarked in relation to band-aids though, so if you have an owie, they have you covered. Also Game of Thrones will let you get drunk, which might lead to the owie.
> 
> Game of Thrones is especially unique. First it's not the book series name. Second it's held by HBO, not George R.R. Martin.
> 
> A Song of Ice and Fire, the actual book series name and arguably the biggest selling fantasy series from a modern author? Not trademarked.
> 
> So it appears at least in fantasy, the genre most related to LitRPG that trademarking series names is not really a thing. Unless there are other merchandising opportunities.
> 
> It's entirely possible I missed something searching the USPTO. It wouldn't be the first mistake I've made. But I tried to be thorough.


And you'd think the author and his attorney would have put at least as much time in to researching that as you did, but...you would apparently be wrong if you thought such a thing.


----------



## KelliWolfe

At the time most of those series came out there really was no indie publishing (at least not as it currently exists), and how likely would it have been for a tradpub to infringe on another's popular series name? It makes sense for merchandising and such, where it's far more likely that someone outside of publishing might try to cash in on the name, but for the book series itself? Why bother?

Even without a trademark, though, I have no desire to see what happens if I try to publish a series called "The Hunger Games." But I'll be happy to bring the popcorn if someone else wants to try!


----------



## Rick Gualtieri

Annie B said:


> Nobody could make an RPG based on your series without your permission. No trademark needed. You have copyright and if you don't license the rights to X to them, they can't do it. They would be liable for a ton of damages under the law in the USA. Trademark won't change that. This is part of my point... people seem to think trademark and copyright are the same thing and they aren't, at all.


Yeah copyright law is what protects the meat of your creation. If I am remembering this correctly, a Trademark would simply stop them from labeling their RPG with your title/font treatment (assuming that's what you trademarked ... and also assuming you covered board and video games in your filing).


----------



## Becca Mills

Annie B said:


> Nobody could make an RPG based on your series without your permission. No trademark needed. You have copyright and if you don't license the rights to X to them, they can't do it. They would be liable for a ton of damages under the law in the USA. Trademark won't change that. This is part of my point... people seem to think trademark and copyright are the same thing and they aren't, at all.


Hmm. I thought copyright only protected the actual text of my books, not including the titles. I guess an RPG would include all sorts of place and character names and so forth, and would therefore violate copyright, but couldn't someone put the title of my book or series on a lunch box, along with illustrations of my characters, as they see them, without violating copyright? (This is, we understand, a lunch box exactly nobody would buy.) If copyright already protects against a variety of unauthorized merchandising spinoffs, well, I guess I'm really not seeing why people want to trademark. Author name ... I guess I can see that, though it doesn't seem all that important.


----------



## RPatton

lmgregory said:


> What I found was that of the top 11 series (I went 11 instead of 10 because Wheel of Time was robbed, but that's a tangent), 5 were trademarked (not including Game of Thrones, addressed below). Four had related merchandise and/or movie or tv shows. Only Joe Abercrombie had a trademark that appeared primarily related to his series (First Law). Brandon Sanderson has his name trademarked, but not The Stormlight Archive; Mistborn is, but Mistborn has a game related to it.


You're almost there, but you're missing a key part. Secondary Meaning and that the Lanham Act protects books even if they don't have a registered trademark.

So even if a book doesn't have a registered trademark, it doesn't mean it's not protected by trademark law. If it's achieved secondary meaning, the courts could very well decide that it is essentially trademarked and deserves protection. In some cases, the reason why a book title might have a registered trademark, it's because the book is recognized as the source.

However, I don't think Cocky as a series or any of the other attempts to get a trademark in, would pass the secondary meaning test, and without that, it wouldn't get protection. That's not to say they can't get a registered trademark though. We would hope not, but in the cases where they have, we can only hope the appeals process works.

Also, traditional publishing didn't trademark things because they didn't have to. They actually understood the Lanham Act or had attorneys on staff or retainer who understood the Act.


----------



## Tulonsae

Content removed due to TOS Change of 2018. I do not agree to the terms.


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## 39416

So I guess _"Cocky Dragon Slayer Forever"_ is out for the title of my next book, huh? Dang.


----------



## jb1111

Patty Jansen said:


> I know a few lawyers. They're not usually incompetent. In fact, they're very smart... at getting money out of their clients.
> 
> With this trademarking BS, there is only one group of winners: the lawyers, and they're laughing all the way to the bank.


You can bet that there were talks between the clients and attorneys in these cases about fees, as it looks like some of the TM apps were overly broad. Clients gripe about fees. Probably every attorney has dealt with that -- and in some cases it can be warranted. Some clients don't pay, of have difficulty in paying -- it's all part of the business.


----------



## lmgregory

RPatton said:


> You're almost there, but you're missing a key part. Secondary Meaning and that the Lanham Act protects books even if they don't have a registered trademark.
> 
> So even if a book doesn't have a registered trademark, it doesn't mean it's not protected by trademark law. If it's achieved secondary meaning, the courts could very well decide that it is essentially trademarked and deserves protection. In some cases, the reason why a book title might have a registered trademark, it's because the book is recognized as the source.
> 
> However, I don't think Cocky as a series or any of the other attempts to get a trademark in, would pass the secondary meaning test, and without that, it wouldn't get protection. That's not to say they can't get a registered trademark though. We would hope not, but in the cases where they have, we can only hope the appeals process works.
> 
> Also, traditional publishing didn't trademark things because they didn't have to. They actually understood the Lanham Act or had attorneys on staff or retainer who understood the Act.


Ah, I noticed the pattern, but didn't know the reason. I figured that Martin had an army of lawyers waiting to pounce on anyone crazy enough to duplicate his series name. That's interesting. And makes sense. Thanks.

Why is a trademark needed for merchandising? Yogurt's wisdom shows us that merchandising is where the money is, but there must be some reason that books can be protected without, but random junk isn't. Somebody thought Hunger Games the band-aid needed a trademark, but Hunger Games the book series didn't.


----------



## Guest

........ said:


> Michael Scott Earle just shared this with the note to share to other groups if you want to... I'm assuming this means it's okay to post here. If not, I apologise and please delete. His post:
> 
> ...Look, despite a certain website you might have seen with a landscape of cleverly photo shopped "Dragon Slayer" covers intended to outrage you, I don't know of a single SERIES of books named Dragon Slayer that has ever been written. There might have been one back in the day, but I couldn't find a SERIES named that.


This guy...  (the guy with the shared post, not the quoted kboarder)

Not only are there several series named "DragonSlayer" but Googling "dragon slayer series" turns up one of them *in the first page of results*: Resa Nelson's 4 book series titled "The Dragonslayer Series". It was first published in June of 2008. Still available in ebook, paperback, and audible, as well as a 4-book box set.


----------



## Used To Be BH

Luke Everhart said:


> This guy...  (the guy with the shared post, not the quoted kboarder)
> 
> Not only are there several series named "DragonSlayer" but Googling "dragon slayer series" turns up one of them *in the first page of results*: Resa Nelson's 4 book series titled "The Dragonslayer Series". It was first published in June of 2008. Still available in ebook, paperback, and audible, as well as a 4-book box set.


That's the kind of evidence to send to the trademark office as part of a protest.


----------



## Ice Bear

> I don't know of a single SERIES of books named Dragon Slayer that has ever been written. There might have been one back in the day, but I couldn't find a SERIES named that.


That point struck me as well.

The TM trend is so bizarrely scattershot and exasperating. With the nuances and Lanham Act discussion, maybe someone could claim (in the most charitable light) that they naively acted out of fear or misunderstanding, but only a 15 second search turns up:

Jasper Fforde's - The Last Dragonslayer Series 2010
Kate McMullan's - Dragon Slayers' Academy - 2003 
Resa Nelson's - The Dragonslayer Series - 2016
Carey Green's - The Dragon Slayer Chronicles - 2014

Also, some variation of the 'dragon slayer' theme has appeared in stories from the time of antiquity, and is practically a staple of medieval legends and fairy tales. It has its own Wikipedia page with a gazillion links. How can anyone conceivably think that a term that has already formed so many existing associations should be part of their own branding strategy?

Say someone writes a fantastically successful scary story:

If it's about cherry tomatoes, a TM for 'the *haunted* cherry tomato plant' might be okay. Normally, cherry tomatoes are just sitting there in the sun, little jewels waiting to be tossed into a salad with some olives and feta cheese. Anyone managing to make them scary might have something unique enough to matter.
If it's about a zucchini plant, well, that's a little more naturally sinister, but possibly still allowable.
A pumpkin patch - see now this is problematic, pumpkins are associated with Halloween, Halloween is associated with haunting
A house, or castle, or woods - um just no, those associations already exist with the word haunted
Becca summed it up best with her observation 'I think words are weird.' (Thanks very much for wrestling the thread to the ground and collating it into more searchable bits by the way). They are weird, and they are special, and where books are concerned, they should also be free to use. *No one has to pour resources into inventing them, so no one should be able to put padlocks on them.*

Maybe these TM filings are expected to fail and are just some misguided attempt at search engine optimization, but I still wish they'd stop.

From a writing perspective, these moves are limiting. Even if the TM is for the series, we've seen the effect possible on titles.

From a reading perspective, they are even more frustrating. Enough of these individual twigs will dam the river, and why should anyone choke off the flow of downstream books or mess with discoverability? If a reader is in the mood for a book about dragon slayers, they should be able to type that into a search engine and get an ever-growing selection to chose from, not just this particular author's books (plus those that were lucky enough to predate him). Readers read much faster than one writer can write.

Okay, sorry for the size of this post, apparently lurking too long on a thread can induce long rambling rants.


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## Guest

Ice Bear said:


> That point struck me as well.
> 
> The TM trend is so bizarrely scattershot and exasperating. With the nuances and Lanham Act discussion, maybe someone could claim (in the most charitable light) that they naively acted out of fear or misunderstanding, but only a 15 second search turns up:
> 
> Jasper Fforde's - The Last Dragonslayer Series 2010
> Kate McMullan's - Dragon Slayers' Academy - 2003
> Resa Nelson's - The Dragonslayer Series - 2016
> Carey Green's - The Dragon Slayer Chronicles - 2014


Small clarification: Resa Nelson's was actually published in hardcopy (paperback) in 2008 (still available) but the kindle ebook was 2016. Just in case it's cited in regards to the TM protest (letter of protest: https://www.uspto.gov/trademark/trademark-updates-and-announcements/letter-protest-practice-tip )

As to the rest of the post &#128077;


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## AltMe

Ice Bear said:


> Okay, sorry for the size of this post, apparently lurking too long on a thread can induce long rambling rants.


By Kboards standards, that was a short one.


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## Ice Bear

Thanks for the clarification Luke Everhart.
I checked that they were available in ebook format but not the dates. My attention to detail slips when I'm in rant mode (actually my attention to detail is lacking in any mode but I'm just going to pretend otherwise).

Oh and thanks TimothyEllis for this:


> By Kboards standards, that was a short one


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## RPatton

lmgregory said:


> Why is a trademark needed for merchandising? Yogurt's wisdom shows us that merchandising is where the money is, but there must be some reason that books can be protected without, but random junk isn't. Somebody thought Hunger Games the band-aid needed a trademark, but Hunger Games the book series didn't.


Ready for this? The restriction is believed to prevent encourage creativity. The writers of the Act understood that nothing is completely original. It's all inspired by something else. To Kill a Mockingbird is protected because of achieving secondary meaning, but that doesn't stop someone else from writing a story and creating a world about a young girl coming of age during in a racially divided town with a trial as a subplot.

And then there's Band-Aids. That's a trademarked name and part of a brand identity. You know when you get that little white box with the blue and red writing, what kind of adhesive bandages you're getting. So while people might call a Curad adhesive bandage a band-aid, it isn't. When the identity of the brand is the brand, it's should be trademarked.

For people who are trademarking book series, they probably haven't done enough research to know that it's not necessary if it actually warrants a trademark, _or_, and this is more likely, a perfect example of doing something because they can instead of whether or not they should. In FH's case, it backfired, and it backfired in huge proportions. That those who had a business relationship with her continued with their trademarking endeavors leads me to believe it's not about protection, but a way to either limit the competition or intimidate.

_Edited to fix a word that changes the entire meaning..._


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## unkownwriter

> limit the competition or intimidate


This is what I think. Most of this stuff has been around a long time, these folks hadn't come up with anything new, and in fact they built their careers on the backs of others. As we all do. Of course, exact copying isn't right. No one is saying that. But something to remember is that there are really no new stories, just different ways to tell them.


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## KelliWolfe

she-la-ti-da said:


> This is what I think. Most of this stuff has been around a long time, these folks hadn't come up with anything new, and in fact they built their careers on the backs of others. As we all do. Of course, exact copying isn't right. No one is saying that. But something to remember is that there are really no new stories, just different ways to tell them.


Yes. And cover designs tend to fall into patterns based on genre and even more so when doing series. It's less about copying others than it is dealing with cover limitations and meeting reader expectations. Step outside of those expectations and watch your book sink to oblivion.


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## unkownwriter

KelliWolfe said:


> Yes. And cover designs tend to fall into patterns based on genre and even more so when doing series. It's less about copying others than it is dealing with cover limitations and meeting reader expectations. Step outside of those expectations and watch your book sink to oblivion.


Exactly! We may not like it, but that's how it goes. You want to be a little different, but not too much.


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## Rose Andrews

Luke Everhart said:


> This guy...  (the guy with the shared post, not the quoted kboarder)
> 
> Not only are there several series named "DragonSlayer" but Googling "dragon slayer series" turns up one of them *in the first page of results*: Resa Nelson's 4 book series titled "The Dragonslayer Series". It was first published in June of 2008. Still available in ebook, paperback, and audible, as well as a 4-book box set.


Dragonslayer is a common term in fantasy. There is an awesome 80's movie called 'Dragonslayer' about a blond haired lad who saves virgins from having to be sacrificed to a dragon. It's used in video games, books, movies, cartoons, and basically anything folklore when it comes to warriors vs. dragons. To want a trademark over that term would be, imo, far reaching, since having a trademark means you have to enforce it. How would he justify enforcing some use of the titles but not others? Or would it only be enforced for fantasy book series? At this point, I am hesitant to believe (and have been from the very beginning) that doing all of this has been intended solely for brand protection. In reality, it seems otherwise like others here have mentioned.


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## ........

Good to see Faleena Hopkins is withdrawing her trademark and has settled with those whom she was in a legal fight.

Do we need a new thread tracking the other trademark nonsense going on?


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## unkownwriter

I'd think this one would do for all the TM craziness.

I'm also glad to see the cocky mess settled. Maybe some who are wanting to follow the same path trademarking common words and phrases will think twice.


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## Elizabeth S.

"Geniuses" went up for opposition (so it's essentially already been approved). It's been trademarked for a "series of fiction books."


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## ........

Michael-Scott Earle's trademark attempt on person holding weapon now withdrawn: http://tsdr.uspto.gov/#caseNumber=88026770&caseType=SERIAL_NO&searchType=statusSearch


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## Becca Mills

Elizabeth S. said:


> "Geniuses" went up for opposition (so it's essentially already been approved). It's been trademarked for a "series of fiction books."


FYI ... my understanding of the following (from the USPTO site here, emphasis added) is that letters of protest may still be filed during opposition but are less likely to be accepted for consideration:



> File the letter of protest as soon as possible after the subject application is filed and preferably before publication. Pre-publication letters of protest are accepted if the evidence is relevant and supports a reasonable ground for refusal. *After publication, a letter of protest is only accepted if the evidence supports a clear error on the part of the USPTO in approving the mark for publication.* A letter of protest filed after the thirty-day opposition period is denied as untimely.


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## Rod Little

penpapernovel said:


> ... But what they adjust it to is what they wanted in the first place. Only now they've gotten a ton of attention and have attempted to come out looking like a poor wayward author just trying to protect their brand that their overreaching lawyer was too zealous about. Free publicity and a mea culpa to protect their rep.


I agree, it may not be about winning or losing. It might just be about free publicity.


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