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May 8, 2018

Branding: The Right Way vs. the Wrong Way

Painting of an R in a circle with text: Authors, Trademarks, & Ethics

Over the past few days, a crazy story has erupted on social media with the hashtag #cockygate. It involves authors (one who’s quite…erm, cocky), Amazon, and trademark law.

Author Faleena Hopkins claims her readers were getting confused by so many romance books having similar titles to hers. That issue isn’t unusual, as a quick look in any genre would reveal that popular tropes often lead to similar titles.

Historical romance titles tend to include a lot of Dukes, Lords, and Rakes. Hard science fiction titles appropriately include several Stars, Quantums, and Worlds. Serial killer mystery titles include words like Secret, Case, and Dead.

In fact, book titles are considered so “generic” that we can’t copyright them in the U.S. Simply put, we can’t think of our book title as being a unique element that we own. A book title is not a brand.

Our Book Titles Are Not Our Brand

We could search on many titles and find multiple books by that name—often in the same genre because of those common tropes.

Over the weekend, author Lynn Raye Harris did just that on Twitter, pointing out all of the romance books that share the same title as one of hers, here, here, here, and here. Her quick search revealed five books in the romance genre with the title Hot Pursuit.

In other words, titles alone aren’t enough to make our book unique for readers to remember or find. Instead, we want readers to recognize our name, perhaps along with our covers overall.

If we succeed, readers won’t be confused by books with similar titles. As Lynn Raye said, despite five identically titled books, no one has ever complained to her about purchasing the wrong  book.

If We’re Not Branding Ourselves, We’re Doing It Wrong

Any author who claims their readers purchased the wrong book because of common words in the title is really bad at branding. They’ve branded a book title instead of themselves.

We should brand ourselves more than our book titles, or we're doing it wrong. Click To TweetApparently, Faleena Hopkins is so bad at branding that the only way she knows how to help her readers remember which stories are hers is to make sure no other author can use the word…cocky.

That’s right. She thinks “cocky” is what makes her most memorable to readers. Not her name or her writing. Not the premise of her stories or series. Not even the whole title of her stories.

She’s so bad at branding that she’s spent several hundred (thousand?) dollars to acquire a trademark—but not on her series title. Oh no. Just on the word cocky.

Most authors write multiple stories, multiple series, maybe multiple genres, and we want readers to follow us throughout our career. Us. Our name.

All of our branding should lead to strengthening readers’ impression of us. Even if Faleena wanted cocky to be part of her name’s brand, that’s what an author tagline is for. If she weren’t determined to hurt other authors, I might be tempted to feel sorry for her for being so poor at branding.

How to Destroy Your Brand in One Step

However, I don’t feel sorry for her because she fraudulently acquired a wordmark on cocky in relation to books/ebooks and is using that trademark to threaten and harm other authors.

Obviously, common words shouldn’t be trademark-able under most circumstances, but the overworked U.S. Patent and Trademark Office tends to approve most applications and lets the courts figure out which ones don’t make sense later. (That is, the granting of a trademark implies nothing about its legitimacy.) Unfortunately, that also means only those with the funds to pay lawyers are privileged to benefit from common-sense legal protection.

Luckily in this case, her behavior pissed off enough authors (many of whom are also lawyers or former lawyers) to jump in and help out, one of whom filed the necessary paperwork. RWA is also talking to an IP lawyer about the situation. So this trademark isn’t long for the world.

But in the meantime, she’s using a trademark acquired by lying to the U.S. PTO to send authors threatening letters (claiming she has rights to all royalties of every book with “cocky” in the title unless they retitle their books!). And she’s also taking advantage of the suspend-first-ask-questions-later behavior of Amazon to take down books with “cocky” in the title.

(So far, I think she’s only gone after self-published authors. I’d love to see her try these threats against a big publisher, but it’s a fair guess that she won’t.)

Not to mention that her second trademark filing, a stylized version of the word (similar to a logo) used a font she didn’t have permission to use in a trademark, and the font artist is going to have to fight her as well. So she’s defrauding creators left and right.

As I’ve said many times before in my posts about branding: Our brand is others’ impression of us. No one exhibiting that behavior above is creating a positive impression.

How Much Do We Need to Worry about This Issue?

Obviously with a word like cocky, this particular case involves the romance genre. However, the principles behind the case—that anyone could trademark a common word and take down our books with that word in the title—affects all authors.

All anyone has to be willing to do is fork over some money and lie in their trademark application, claiming to be the first to use the word in books or ebooks. About the only time we wouldn’t be lying is if we made up the word. *smile*

If you missed this story over the weekend, and want more information to understand just what the heck is going on or want to better understand the legal aspects, check out these resources:

Update: We now have a process to prevent future trademark trolls from succeeding! Check it out because every author (self or traditionally published) needs to look out for trademark applications that affect them.

Competition Isn’t Something to Shut Down

It’s understandable that we want to protect our brand. We spend a lot of time writing, publishing, and promoting our work, but competition isn’t a threat.

Competition for an idea isn't a threat. It's an opportunity. Click To TweetBy claiming in her application that she was the first to create a market for the word in relation to books, Faleena delusionally thinks she “invented” the cocky hero, even though several bestselling series with “cocky” titles were published before her less-bestselling one. So she’s convinced that every other book with cocky in the title is copying her. (Even the ones that came before? *sigh*)

Every new idea—even if she had been the first—is potentially just the first of a trend. No one can own the very idea of a cocky hero, a billionaire hero, a Marine hero, a dystopian setting, a historical-paranormal-mystery romance, or anything else.

Others that follow are exploring the trend, taking it in different directions and offering options to readers. In many cases, those additional books are helpful to us, as they potentially bring in new readers to the subgenre, broadening the audience who might discover our books when they want to read more along similar lines.

Romance readers have seen tons of trends from firefighter heroes to motorcycle club settings, from stepbrother stories to royalty-in-disguise premises. Every one of those trends is filled with authors running with an idea.

Just as in any subgenre, we need to write the best books we can and market them to our target readers. If those we believe copycats for our idea are more successful, we need to look at the quality of our stories and/or our marketing—not at shutting down the competition for ideas.

What’s the Right Way to Protect Our Brand?

There are threats to our writing and brand that we might want to protect against, such as plagiarism. But trademarking a single word isn’t the right approach for dealing with those threats:

  • For plagiarism, the well-known tactic of establishing copyright will protect our content, the text in the story.
  • For copycats, if some is being a copycat to the point of tricking readers by impersonating us or our books, we might want to consider a trademark to protect our series title or our author name.

Unlike individual book titles, which can’t be protected, we can protect our series name with a trademark. Not just one word from the series title—the whole title.

Unfortunately, this isn’t the approach Faleena chose. In her case, she changed her series title from something unique and distinctive to something more generic in order to file the trademark application claiming she was the first to market with the word.

Worse, her application wasn’t even for the new series name, but just the one word from it. And then worse again, she’s using that series title trademark to go after book titles. *sigh*

Trademarks don’t work that way. If it weren’t for Amazon’s suspend-first-ask-questions-later policy, she’d be powerless, as trademarks have legal power only after they’ve been successfully defended in court. (Update: Thanks to RWA’s intervention, Amazon has hopefully ceased pulling down books with cocky in the title.)

In other words, there’s not necessarily a neat and clean way to guarantee protections through legal means. No matter what we do, we might be forced to follow through within the court system, which costs money and time. But it’s still good to know the options we can pursue—legally and ethically. *smile*

Had you heard of this trademark issue? Do you have different insights or opinions? Are you worried about being affected by fraudulent claims like this? Are you tempted to apply for your own trademark? Do you have other suggestions on how to protect ourselves?

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Brigid Ashwood
Brigid Ashwood

Thank you for such a great breakdown of this situation Jami!

K.B. Owen

What a thoughtful post, Jami, and you raise great points about branding. I’m a mystery author rather than a romance author, but I’ve been following this because all indie authors (I say indie because the trad-pubbed authors would have the Big 5 protecting them) are at risk of being victimized this way. And you can bet there are some unscrupulous people out there who are watching this very carefully, to see if they can pull a similar stunt later on. It takes time and money to fight such a claim, even an outrageous one. I feel so badly for those poor authors who have had their books pulled because of this, and I’ve read that some authors have already re-titled their books to avoid more trouble. I understand why they would do it, but re-titling is a nightmare. Feleena Hopkins, in her C&D emails, characterizes it as simple, and if she really believes it she’s a fool. I cannot imagine having to re-title all my books. There are the Library of Congress copyrights, the new ISBNs that would have to be purchased, the printed promo materials tossed and new ones ordered, the new covers made and paid for and purchased, the re-formatting…and 3 of mine are in audiobook form, too. In my reading, I ran across someone pointing out that if she’s not also going after the big authors (trad-pubbed or not) who use her “trademark,” but instead picking and choosing who to go after, then she is not sufficiently…  — Read More »

Chloe Adler

Very well written! This contains a lot of insightful information that I haven’t read elsewhere! Thank you Jami, as always, you’re “Gold/en” – oh wait should you trademark that?

Elizabeth Randolph

I am confused. So strange Amazon is removing books. A few months after I put my first Indie book up on Amazon, someone else put a book up in the same subgenre with the same title. I had googled the title and found none. I had searched on Amazon for the title and found none. I asked Amazon if they cared about someone using the same title. They told me titles cannot be copyrighted. To do so would remove words from the English language, and that was not practical. Since then, I have seen many “same” titles in many genres.

I wonder why Amazon is behaving differently now. The threat of a lawsuit?

Anne R. Allen

Thanks for this well-thought-out analysis of the #ByeFaleena drama. It seemed pretty obvious to me that the woman knows nothing about this business. You point out several basic things she didn’t know: 1) Your name is your brand, 2) Your colleagues are not the competition. 3) Ideas are worth nothing; it’s the execution that matters. 4) Lots of books share the same title.

When my first novel The Best Revenge came out in 2005, there were two books with that title. One was a memoir and the other was biography. My publisher didn’t worry at all that it was shared. (In fact, Harlequin “borrows” titles all the time.) Since then, about 10 books have come out with that title, including some in chick lit (my genre) and others that are pretty steamy erotica. Has anybody complained they couldn’t tell us apart? Nope.

But as ignorant and clueless as this woman may be, she IS dangerous because she paves the way for scammers. So I’m very glad so many lawyers are pursuing her.

Deborah Makarios

Good grief! It almost makes one want to title something with the word cocky, just to make a point. (My current WIP even has a cocky hero…) I generally try to avoid using a title which is already in use in the same genre or subgenre, but it’s not the end of the world if there’s an overlap, for pity’s sake.
I am reminded of Sir P.G. Wodehouse, one of the greatest comic writers of his or any time, saying that he hoped his book – Summer Lightning, if I recall correctly – would come in time to be recognized as one of the 20 greatest books titled Summer Lightning.

Rachel capps

As a former lawyer, I totally understand your point! How annoying for real romance writers.

Mark R Hunter

I can only imagine he fun if I’d tried to trademark the title of my first novel, Storm Chaser. Only after I was published did I think to check–there were already four or five books with that title.

Clare O'Beara
Clare O'Beara

Thanks, I had not heard about this situation and it seems a stupid and malignant thing for an author to do. Maybe she was just after publicity. After this kind of behaviour I would not buy her books nor review them.

Jocelyn
Jocelyn

Thanks much for the insight, Jami. I enjoy your writing style and am learning so much more from your blog than I’d even anticipated.

William L Hahn

Many thanks Ms. Gold for going through that remarkable scholarship and for your diligently-polite opinion! I’ve seen some pretty strong language about this issue elsewhere! It was a real shock to me that you pointed out, she hasn’t tried to bully anyone with trad-pub backing. I was speculating that this woman was just in a bubble, populating a universe of support based on her posts and imagining that only a few cranks were haters. But that by itself is a lightning stroke, verily what a dope.

I’m throwing my share on the pile- nothing wrong with YOUR brand- because those links will be very valuable to the tribe looking at this and trying to hold their tempers.

In your debt.

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[…] our writing community is when I read a post about the #cockygate issue. As I mentioned last time, our brand is what others think of us, and Faleena Hopkins, the author behind the cocky trademark, hasn’t impressed anyone with her […]

C C Cedras

The Twitterverse has held me in thrall for a full day! Your article is one of a few I’ve seen that really dissect important elements of this legal drama. You mention Amazon’s role, and one comment I’ve seen is that Amazon has a valid claim to make against Faleena, as well. Imagine the impact on her and others who may seek to emulate her in the future, if Amazon demonstrated that kind of leadership.

Cassie Sharp’s open letter to Faleena also gave me food for thought about the importance of a tribe of indie writers who, if she’d had one, would have counseled her that the things she felt were attacks on her brand and herself were common things we all encounter from time to time. Her Draconian step to eliminate all competition is breathtaking in its audacity, and I’d almost feel sorry for her if she wasn’t such an egotistical, narcissistic bully.

Thank you for your wisdom, Jami!

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[…] Funny, I asked the same thing. In fairness, a lot of other bloggers have done a WAY better job explaining what’s come to be known as Cockygate (like Jami Gold’s Branding: The Right Way vs. The Wrong Way). […]

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[…] you’ve somehow managed to stay innocent of this creepiness, there’s great coverage from Jami Gold on her blog, with links to other important posts on the […]

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[…] few weeks ago, I wrote about #cockygate, which highlighted a few of the mistakes made by an author attempting to trademark the word cocky. The worst issue is that she acted like she owned the word, when in fact, trademarks only allow the […]

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