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June 5, 2018

Why Every Author—and Reader—Should Care about #Cockygate

Keyboard button with "Scam Here" and text: How #Cockygate Affects Us All

With a name like #cockygate, it’s no surprise that the recent trademark brouhaha would elicit some snickers. Put together with the fact that it’s coming from the often-maligned romance genre or that it’s mostly involved self-published authors up to this point, and some are far too quick to dismiss the situation.

Some, I’m sure, wish I would stop talking or tweeting about it, bored by the details. They can’t understand why I care so much about a trademark that doesn’t even affect me, my books, or my subgenre.

However, no matter our favored genres or publishing method, everyone who reads or writes books should pay attention. #Cockygate is far bigger than just one word, one trademark, or one genre.

In fact, the reasons behind the trademark—as well as what results from the legal battle—affect us all, authors and readers.

What Is #Cockygate?

Maybe you haven’t been paying attention to #cockygate for whatever reason, but you believe me about it being important for us all. Now that you’re here and paying attention, let’s get you caught up so we can then talk about why and how it’s important…

(If you’re already caught up, feel free to skip down to the next section.)

Last year, author Faleena Hopkins submitted three trademark applications:

  1. Cocker Brothers (the actual name of her series)
  2. cocky (in a specific font used on her book covers)
  3. cocky (yep, just the word itself in the trademark category of “book series,” even though that’s not the name of her series)

All three trademarks were granted recently after no one realized she’d applied for them and filed a legal protest or opposition to stop her.

  • No one has a problem with #1, as it is the name of her series and likely doesn’t affect others.
  • #2 is its own mess, as the font’s license doesn’t allow for it to be used in trademarks. The font designer sent a Cease & Desist letter to the author, and that battle is in process.
  • But #cockygate mostly refers to #3. The hashtag grew out of people sharing updates for the situation on Twitter.

Authors discovered the trademark issue when Faleena threatened authors with cocky in their book titles (even though the trademark just covered book series). Her self-written Cease & Desist letters intimidated some into changing their titles—despite the hassle, expense, and harm to their marketing efforts—because the cost to fight her would be even more expensive from a legal, money, time, and effort perspective.

However, some authors refused to be intimidated. After she couldn’t get some authors to change their whole marketing approach for their books, she then used Amazon to take down books with cocky in the title, description, or keyword by waving her trademark around (even though none of that book metadata has anything to do with a series title trademark).

In response:

Not to be foiled in her attempt to “own” a word, Faleena requested a preliminary injunction and restraining order to prevent the trademark from being cancelled and some books from being sold.

The latest update occurred last Friday, when the judge:

  • rejected her request to take action against Kevin’s Petition for Cancellation (i.e., it’s still active and in process with the U.S. Patent and Trademark Office (USPTO))
  • rejected her request for the injunction/restraining order to take immediate effect (i.e., the books can be sold while waiting for the official hearing later this summer)

Got all that? *smile*

Now, let’s talk about how that third trademark is a problem for several reasons—and how those reasons point to manipulative marketing strategies that affect us all

Problem #1: Wait, Can You Trademark a Common Word?

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.)

The author claims she submitted trademark #3 on just the word cocky to “protect her brand.” That’s an utterly ridiculous claim, as an author’s brand is their name.

Books share tropes/story premises, stock cover photos, fonts, and even titles (of books and series). What makes one book unique and different from every other book is the author.

Besides, as mentioned above, she filed the trademark in the category of series titles for just a single word that isn’t even the series title—or even how she’s been marketing the series. So no, a common word isn’t trademark-able, and the trademark is likely to be canceled.

Problem #2: Wait, Does a Trademark Mean You Own a Word?

Despite what some believe, a trademark doesn’t grant many rights. Trademarks don’t prevent people from using a word descriptively or in book titles. (Think of any book with “Apple” in the title, even plenty that do refer to the trademarked technology company.)

People are allowed to use trademarked words in any context except those which would create consumer confusion about the source. In other words, from McDonald’s golden arches to Nike’s “Just Do It” slogan, trademarks mostly come into play with marketing.

For example, we couldn’t use apple in the name of a computer gaming company, because consumers could easily assume that the source of the company’s products was Apple Inc. On the other hand, we might be able to use apple in the name of a board game company, as consumers are less likely to assume that a technology company would have anything to do with a no-batteries-required board game.

Problem #3: Wait, So What Is the Point of a Trademark?

All that means that even if Faleena’s trademark on cocky were valid, the trademark wouldn’t legally grant her the right to forbid the word in all other books. Legally, it would only grant her the right to fight against books that implied a connection to her series or that would cause confusion in an “average consumer” about the author source.

Given the overlapping of book titles, tropes, stock cover photos, etc.—even series names—readers have to pay attention to author names if they’re looking for a certain book or series. That’s why an author’s brand is their name.

Trademarks are only as strong as they can be defended in court. That’s where their legitimacy comes from, not from a piece of paper claiming trademark registration. And it would be extremely difficult to prove likely “market confusion” in court except in cases of purposeful copying.

As Courtney Milan said in a Twitter thread in regards to the potential of trademarking her historical romance Worth Saga series:

“Trademark in books is probably going to only be legally effective for things like scammers, deliberately trying to deceive readers by publishing the historical romance series of the Warth Saga as Courtney Melon.

And—here’s the catch-22 in trademark in books: You only really have a strong trademark if consumers start associating your mark with you.

BUT the more readers remember your books, the less likely they are to be confused by similar associations.

Trademark is only infringed if consumers will be confused.”

Problem #4: Wait, So Why Did Amazon Take Down Books?

Now you may be wondering: If the trademark is likely invalid, she doesn’t own the word, and those other books wouldn’t cause readers to be confused, why did Amazon take them down?

The answer is that Amazon’s rules are different from legal rules. With non-book products, Amazon has had to fight hard against sellers who infringe on trademarked products.

For example, let’s imagine a seller who uses the word LEGO in their product title, description, and keywords for their knockoff building blocks. Claims to be “LEGO-sized” or “works with LEGO” are intended to confuse consumers about whether the knockoffs are real LEGO blocks. That is, the word is intended to confuse consumers about the source—are the blocks made by the LEGO Group or not?

To counteract that problem, Amazon often takes down listings for products that name check trademarks. If you’ve published on Amazon, you might be familiar with their rule against name checking another author in book descriptions or keywords—that’s the same idea in the book realm as the trademark issue.

The BIG Issue with Problem Trademarks

And now we get to understanding why Faleena and other authors like her are attempting to register these hinky trademarks—and why all authors and readers need to pay attention to the outcome of #cockygate.

So far we’ve learned:

  • trademarks are about marketing
  • trademarks aren’t powerful on their own
  • Amazon’s rules are different from legal rules
  • Amazon can forbid listings that name check trademarks

In other words, the authors attempting to register these weak trademarks don’t care how weak they are in a court of law. They care only whether they can exploit Amazon’s rules.

Scammers Want to Manipulate Amazon

Those of us who have been following #cockygate from the beginning suspect that Faleena learned how to market her book from a Facebook book marketing group. Some book marketing groups are ethical and helpful. Others, not so much.

Some book marketing groups share unethical, illegal, and/or scammer-style strategies, loopholes, exploits, etc. They don’t care about writing quality. They care only about how they can manipulate the market and trick readers so they can make the most money possible.

And how do they manipulate the market and trick readers?

For this scammer-strategy, it’s by manipulating Amazon into eliminating their competition.

Scammers Want to Weaponize Amazon

These scammers figure that if they can get Amazon to take down every listing that mentions their trademarked word, only their books will appear in the results when readers search for the term.

That’s their goal. That’s why they’re spending hundreds or thousands of dollars to file trademarks that won’t stand up if challenged in court.

What happens to Amazon if #cockygate-style trademark trolls get what they want? Click To TweetThat’s why Faleena has no answer beyond her nonsensical “I’m trying to protect my brand” claim for why she’d register a trademark for a single word that isn’t even her series title. That’s why she jumped to siccing Amazon on those non-intimidated authors rather than taking the next legal step.

Those of us who watched those early days of #cockygate first saw a few books taken down with cocky in the title. Then we saw books disappear that had cocky in the keywords or descriptions. (And don’t forget that authors don’t even have control over all their keywords—some are auto-generated by Amazon itself.)

Again, those disappearances have nothing to do with the legal rights of a trademark. But that’s normal behavior for Amazon when it comes to trademarks.

And that’s exactly what Faleena intended when she launched her bad-trademark weapon. I don’t like ascribing motives to others, but absent mental issues (which may be a factor as well), no one would spend the money to defend such a doomed, weak trademark—especially not after the truth and objections came out—if this wasn’t their intention.

So don’t fall for her poor-me victim claims. She purposely trademarked a search term, not her author-name brand.

How Does This Affect Readers?

Faleena Hopkins isn’t alone. Somewhere in the recesses of the internet, possibly a Facebook marketing group, scammer authors are sharing this tip about Amazon’s behavior. They’re then thinking about what search terms might apply to their books.

Think #cockygate doesn't affect you as a reader? Think again... Click To TweetMaybe it’s a subgenre, like LitRPG. Maybe it’s a character type, like cocky heroes. Maybe it’s a trope, like rebellion. Maybe it’s a setting, like shifter world. Or maybe it’s a story promise, like forever. (Yes, trademarks have been filed for all those words and more recently.)

Anything we can think of for how we might search for our next read on Amazon is potentially a target of these scammers. Searches will no longer show us all the options with our favorite “princess in disguise” or “rogue space captain” or “small-town murder.” Searches will show only the results for whoever owns the trademark on that search term.

In other words, if they get their way, these scammers will break Amazon’s search capability. So yes, this affects all of us.

As mentioned above, these trademarks aren’t strong enough for court. Their only power comes from the threat of Amazon’s actions. Luckily, so far the power of big organizations like RWA and Authors Guild have gotten Amazon to stand down from their policies for cocky, but we don’t know how that will hold for future scammers.

What Can Readers and Authors Do?

Readers and non-scammer authors know that “competition” in the form of books with similar ideas is helpful—at least in fiction. Many times when we discover a story we like, we search out more of the same. Any “competition” brings new readers to the “subgenre” of the search term, broadening the audience who might seek out similar books when they want to read more.

In other words, competition means there’s more of what we like as readers, and more readers for what we write as authors. Win-win.

So beyond just the broken search term issue, we all want to discourage these trademark trolls. What can we do?

Both readers and authors can:

  • keep our ears open for other authors calling out these scammers to know who to avoid
  • ensure we don’t support these scammers—don’t buy their books, read them through Kindle Unlimited, or promote their work
  • support authors targeted by trademark trolls for removal or retitling by buying, reviewing, and/or promoting their work
  • watch out for other scammer behavior, such as “book stuffing” or offering gifts to reviewers (Twitter thread on how to spot scammers and Twitter thread on how scams are often related)
  • report scammer/violators to Amazon:
    On a book’s Kindle page, scroll to the bottom and look for box labeled “Feedback.” The third item is “Would you like to report this content as inappropriate?” Click and then select “Violates the Terms of Services” from the drop-down box. Explain the violation and submit.
  • ask Amazon to change their policies to stop encouraging or enabling these scams
  • support RWA and/or Authors Guild to thank them for “de-fanging” the Amazon threat so far
  • request U.S. federal representatives to fix the budget and/or policy issues at the USPTO by submitting a super-easy, customizable letter

In addition, authors can:

The sooner we catch new trademark applications, the easier it is to stop them. If we can beat back #cockygate and prevent future trademarks from reaching “registered” status, scammers will eventually move on to other strategies. Yay? *smile*

Have you been paying attention to #cockygate, or is this the first you’ve heard of it? Do you understand how this situation isn’t limited to just romance stories with cocky heroes? Had you heard about the Amazon manipulation angle before? Do you have any questions about #cockygate, how this affects us all, or the Amazon problem? Do you have any other suggestions for what we can do?

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MK
MK

This is so messed up. I’d read a bit about it before and it’s baffling that anyone would stoop so low. If you want to boost your sales, work on writing a good book, not cheating other people out of their work.

What’s your feeling on people who are rightfully upset about this giving the author 1-star reviews just based on this abhorrent behavior and not on the actual book? It’s a tactic I’ve seen some people use with regards to harmful books (I mean books that are harmful to marginalized communities) and this behavior really makes me want to ensure this woman sells as few books as possible, and low reviews are a way to do that, but I’ve seen some people say this is unethical as well.

I’m on the fence. Actively trying to harm other authors seems way worse than giving low ratings. What do you think?

Lyn
Lyn

Not Jami here, just another reader. My vote is “no” on the punitive one-star reviews. Well, because it’s wrong. That’s my only argument.

Okay–here’s a better argument. One-starring books, any books, because the author has done something you don’t like (including having a different political or social opinion than you) is vigilante justice. In other words, not justice at all, but base revenge. Do we become freelance water-boarders?

Deborah Makarios

I am also not Jami, but in my opinion, if you give a book a 1-star review for any reason other than that the book itself sucks, you’re doing exactly what Faleena is doing: using Amazon to attack someone. Don’t be like Faleena – and let’s keep book reviews about the books.

Nicole W

Boy, does this explain a LOT. I’ve been following this mess for a while, but it never occurred to me until you spelled it out that she was doing it to get all the other books with “cocky” in their titles or search strings kicked off Amazon. I knew she’d gone crying to Amazon; I just thought she was being a spiteful brat and getting payback on everyone who’d told her to get stuffed when she demanded that they change their titles.

Still, though: WHY would she do that? Why would anyone? Is the temporary bump in sales really worth flushing your name and reputation down the toilet forever after?

Christine Kohler

Good post. This is why I support the Authors Guild with dues, etc.

Lyn
Lyn

Thank you so very much for this post, Jami. Golly, girl, you are an amazing gift to the writer community. No one else that I have seen has gone right down into the weeds on this. Scammers using Amazon’s rules to kill off the competition? And Hopkins a scammer? I had thought the poor thing was just two tomatoes short of a salad. I felt sorry for her because her mental issues were driving her to behave so maliciously and so irrationally. But explained in the light of scamming–well, it’s still malicious, but now I see the rationale behind her screwball antics.

Can she be prosecuted for fraud? I’d love to see that happen.

Mike Crowl
Mike Crowl

Excellent overview of this piece of selfish nonsense. Pity she didn’t just get on and write more books instead of wasting hers and everyone else’s time on all this rubbish.

Anna Erishkigal

Going after the trademark-scammers is going to be like whack-a-mole until somebody enjoins the U.S. Patent & Trademark Office itself for infringing upon the public’s First Amendment right to free speech (the right to use common words). They shouldn’t be issuing these trademarks …. period. There is a MUCH stricter level of scrutiny (strict scrutiny test) which should be used when the government (state action) allows a private individual to trademark a WORD (First Amendment protected free speech right) versus a LOGO, which is artwork which happens to have a word as part of that brand (commerce clause). The government cannot grant a right which it does not itself, possess (just as you can’t sell a house that you don’t own).

Somebody needs to raise the First Amendment ground, and ALSO nail them for violating 42 U.S. Code s.1983 for acting “under color of law to prohibit a constitutionally protected right.” Until the Trademark office is held accountable for rubber-stamping these, it’s just going to keep happening.

Clare O'Beara
Clare O'Beara

Thanks Jami, you are a great source of clear data and advice.

Clare O'Beara
Clare O'Beara

As for one-star reviews, suggested in the comments, my review of each book I read is unbiased and I come to the book with fresh eyes. If it deserves one star in my opinion that is what it gets. Nothing to do with any legal issues the author might be pursuing. Punitive ratings violate one’s own integrity as a reviewer.

Clare O'Beara
Clare O'Beara

As to the all-star fund for pages read, Amazon holds back on payments for two months to give them time to resolve any scammer issues, among other reasons. If this person is determined to be acting unethically and reducing Amazon’s overall book sales/ reads income, I have my doubts she would be paid.
So if you protest to Amazon I suggest you emphasise that this author’s behaviour will reduce Amazon’s income.

Stephanie Taylor

FYI Forever was pulled. The author who did it has a movie made from one of her books. Everyone beat her down and she removed it. I don’t believe for a second faleena is innocent and I hate what she’s done to the industry (I’m the owner of Clean Reads Publishing). But I do truly believe the author who did the forever trademark was accused and crucified based on the whole thing with faleena.

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