What is #Cockygate and Why Should I Care?

May 12, 2018

(The following is the transcription of episode 38 of Paul Sating's Horrible Writing Podcast interview with author, screenwriter, and retired lawyer, Kevin Kneupper. Allie McCormack was kind enough to transcribe this because of the importance of the topic. I cannot thank her enough for doing this.)

 

PAUL:

Those of you who are familiar with the topic, you'll be glad to know... I have with me author, screenwriter, retired lawyer, Kevin Kneupper. He is the author of the “They Who Fell” series, and he's here to advise us, kind of walk us through, what's going on with the Cocky trademark controversy. Again, if you don't have a frame of reference, no worry, Kevin's going to get us all up to speed. Kevin, welcome to Horrible Writing and thank you for taking time out of your incredibly busy day to do this.

 

So, if you can, ground us all to understand, what is this situation with Faleena Hopkins and the trademark of the word Cocky.

 

KEVIN:

Faleena Hopkins is a romance novelist who for a couple of years has been writing a series that's gone under various titles, I found 3 or 4, the Cocker Brothers, the Cocker Brothers of Atlanta, the Cocker Brothers of Georgia, and then very recently was changed to the Cocky Series. The reason for this change is, as far as I can tell, is that she got a trademark on the word Cocky, which is... some people may follow romance novels, some people maybe other genres, but in the romance and erotic fiction genre, this is a very common adjective that's used in the titles, that's used to describe the protagonists. Many of the protagonists are these sort of alpha males who are cocky or arrogant or I've seen all kinds of synonyms that people use for this. Faleena Hopkins wanted to control the word Cocky, so she filed a trademark that kind of went unnoticed with the Patent & Trademark Office on the word Cocky and there is one that is on the word in a logo, so you can trademark just the way the logo looks; Apple has the apple. That's kind of separate from the use of the word itself, it's the way you design the logo, which I don't have a problem with people doing, I don't think anyone has a problem with you making up your own logo for whatever word you want.

 

She also filed a trademark on just the word in general, and has now made some legal threats to authors, talking about lawsuits that if they kept using the word Cocky in their titles that she'd go after them. She has been more recently filing sort of reports I've heard  from people online, and I've seen books taken down because of it, but basically you can go to Amazon if you have a trademark and she has an issued trademark now, because this sort of slipped through, she's gone to Amazon and has been forcing Amazon to take down authors' works that have Cocky in their title, in their series title.

 

So several of the authors have predated her use. They had their own series, there was one series that was called The Cocky Series that was I believe out before Ms Hopkins was using this. So all these authors are... you know, there's been an uproar, right? Because everybody's suddenly facing legal threats, their novels that they've had up for years are coming down. Some of them are looking at this and saying, "Hey, I used this before you, so why are you coming after me?"

 

So this is kind of a big issue, not just for them but for everybody, because some of the fans or supporters of Ms Hopkins have been calling this an evolution in sort of independent book marketing strategy, and I think that it is a disaster, really, if this becomes something that people try to use more commonly, you're going to see, you know, scifi authors may see scifi trademarks. If you're in fantasy you may have, like, Elves getting trademarked, and it turns into who has the most money to have a legal fight, not who has the actual rights to this.

 

PAUL:

Right. And I think that's the scariest thing about it, and why I'm so glad you were able to come on and explain why all of us should care, regardless of the genre. My first book goes live on June 10th, I've got the word "demon" in it, and now I've got this idea that as a horror writer it'd be really neat to just be able to trademark that word as well for the entire horror genre. It might do me well, who knows?

 

KEVIN:

People are going to try this. I mean, if it works, if one person manages to do it, there will be imitators. Which is part of why I ... you know, I thought I was out, they pulled me back in.

 

PAUL:

I was going to laud you on that, because you are retired but you have been pretty public on hey, no, seriously, this is important enough for me to get back involved in the legal side of this issue.

 

KEVIN:

I worked in the patent sector, doing patent lawsuits, and there have been issues and debates, and I worked for a number of different companies, and I won't really talk about companies I worked for before, . there's been a general public debate about what are called patent trolls, and there's nuances on both sides and there's arguments to both sides, but there are some people, I think there's even a Silicon Valley episode on one of the worst episodes of this, where somebody just bought up patents and they had the lawyer going up to all of these startups and say going, "Hey look, you don't have $20 grand, and so pay 10 or I’m going to make you pay $200,000 in legal fees." Which, you know... it is not hard to see I remember as a lawyer there was an instance where some of our guys were talking about and we tried to do a lawsuit for under 2 million. That was like the test: Could we do this lawsuit for spending less than $2 million. And I don't know if we hit it. Those things typically cost 5 to 10 million dollars. A patent suit is probably more expensive than a trademark suit, but they're not cheap, especially if... it kind of escalates, because once you have good lawyers on one side, you need good lawyers on the other side, and they're very, very expensive. I was $700 an hour, and there were attorneys who charged more than I did. So it comes down to, sometimes, people saying, "Well, look, I have this, and do you have the money to fight it?" And sometimes they don't, and that's sort of a win-by-default that I don't want to happen here and I don't want it to start being a trend in the publishing industry.

 

PAUL:

For anybody listening who's sitting there listening, "This is important, yeah, I get it," but they say "Come on, Kevin, this isn't very realistic," how do you respond to that in terms of this setting a precedent going forward?

 

KEVIN:

It doesn't set a legal precedent, but it tempts people, right? Because she's done it. As far as realism, like, this has happened. And so it's not something that can't happen again. I've heard someone say that there's a trademark on LitRPG, which I don't look into it but it's a genre title, and that person didn't go around threatening people, but you know this has happened here, it is very realistic that it could happen again. There have been people talking about, you know, hey, maybe this is the next move, for authors to sort of level up, I guess. And if someone successfully makes a bunch of money by threatening all these other authors, then other people are going to look and go, "Hey, maybe I can make money, too."

 

That's how this stuff works, and I want the first example to be more, no, if you do that there's this legal option here that any other author can file, and many authors are lawyers, I'm not the only one. I'm the one who just has the most time on his hands, I guess. So I filed it, and if I were representing somebody it would cost them lots of money. I've kind of thrown out estimates of $100,000. Looking at the process it might be more, because really it functions like a federal lawsuit and those, as I've said, can go very expensive. So for me, it's just my time so it's zero to me.

 

But I think that having the threat out there of a lawyer out there doing what I'm doing, so say someone goes and gets a trademark on "Demon," any horror writer can go challenge this, any horror writer who's a lawyer can go start the fight, and that makes it a lot... it changes the economics. If you're someone who is thinking of doing this as a strategy, you need to know that you can't just get it through the Trademark office, which is a lot cheaper. Getting the trademark maybe 5 or $10,000, maybe less. And I think that was sort of the cost of the strategy, as contemplated. With what I've done, which is a petition to cancel, the cost is not 5 or $10,000. If you want to try to strategy you're going to be looking at whatever a lawsuit costs, and I think that is going to make it uneconomical for anybody to make any kind of money doing what she's done.

 

PAUL:

Right, and I do want to talk about that because I think that it's an important and reassuring, if you will, event that's happened really recently, over the past 24 hours. But before we get to that, so help us understand... because this has been driving me nuts since I heard about this... and Christopher Rowe from my Facebook group, thank you for asking this question... but Kevin, how did this even get through the Trademark Office?

 

KEVIN: There's multiple possibilities, and I will say I respect the Patent & Trademark Office, I have a lot of respect for how hard their job is, because of my time as a lawyer. You basically find like every patent would have issues with it. And they have to do patents, they have to0 do trademarks, they have to do copyrights. Whenever there's a lawsuit on one of these, they get challenged. The PTO has its work sort of gone over by the lawyers with a fine tooth comb. Mistakes happen, and the reason they happen is probably because of the workload they have, partly it's... the system is designed... it's not adversarial. And when I say adversarial, that's kind of a phrase that means there aren't two lawyers going in there before the Trademark Office with one of them saying, "Hey, this is why I should get a trademark on Cocky," and the other guy challenging why they shouldn't. When this process happens, it's one person going ahead submitting their evidence, and then asking the Patent & Trademark Office to review what they submitted. They have duties when they are doing that, because this is not an adversarial process. The PTO needs to rely on what the person has submitted to them. Okay? So, like, if someone is telling them something then they don't have time to go research; like, I have this crowd of people on the Internet who are tracking down every time that Ms. Hopkins has used a title in her series, or whatever. I don't even, personally, as a trained lawyer, have the time to go find all the things these people are finding.

 

So one of the ways, to get to your question, that this error can happen, it looks like here she told them I've been using this trademark since 2016. And she claimed priority back to around, I think, August 2016, and she said that's when I published my first book this series. Priority means I'm the first to use it there, so from that date on, I established the trademark by using it out in commerce, by selling it, by advertising it, and I own it. That's what you've got to do. For a series you have to use it like in a book series you have to be using the name.

 

But what appears happened here, and why this probably slipped through, is a claim that you may have seen in the complaint, called "Fraud on a PTO," which is where someone violates their duty. They have that duty to be truthful. The duty to submit all the material evidence that they know about, to tell the PTO what they know, so that the PTO can make an informed decision and doesn't have to go over all the thousands and thousands of trademarks to try to research everything.

 

In the industry maybe we have some guy getting this who never read a romance novel. He doesn't know the industry. He has to rely on what she said. And in this case, if you look at the application, she was submitting images to support this trademark use that don't show the first date; for the print version of the trademark they don't even show this series title. They show it was called The Cocker Brothers, and that is I think what was actually being used as a variant of that title, and some people have sent me the emails that she was sending to her fans on her mailing list, and those emails show a change in October 2017, which is a month after she filed the trademark, where the series title changed.

 

PAUL:

And that's a year after she claims to have published it, right? You said August 2016.

 

KEVIN:

Right.

 

PAUL:

Okay, so wow.

 

KEVIN:

A month after she filed the application. I haven't seen every single post out there, so if someone finds any instance of her using The Cocky Series earlier, I'd love to see it, but I haven't seen it, and to me, the timeline this kind of establishes is... there was this other author, Tara Crescent, who published on August 22, 2017, she published a series called The Cocky Series. So the timeline is maybe less than a month later Faleena Hopkins filed her trademark. I think you can infer from that, that probably what happened is that she saw this other series, she said, well I've been using in my individual titles, like every individual title of her book had been The Cocky Fireman, The Cocky ... whatever... Cocky and then some person. But the series title, which is what's important, had never been used. So now we have August, Tara Crescent uses the series title, and appears to be the first person that I can find who did. So then, I think what happened is that Ms Hopkins had a reaction to that, called her attorney up, filed the trademark in September, a month later, and then a month after that, her trademark attorneys must have advised her, or told her something about it, because she suddenly makes this change to her series and starts calling it "The Cocker Brothers: The Cocky Series." Which is something she should have been doing all along if she wanted to even attempt to do this trademark.

 

PAUL:

So does that.... this is completely me from a position of ignorance... does that make that original application fraudulent, if you will?

 

KEVIN:

So the term... these are legal terms, right? When I say "Fraud on the PTO" there is like this list in a bunch of manuals, statutes for grounds for why a trademark can be invalidated. So there's all kinds of different reasons that a trademark might not be valid. It might be too generic, it might be descriptive, and one of them is that in your application you did what was called fraud on the PTO, and that just means you intentionally omitted or tried to deceive, or you omitted some material fact, and I think this timeline is really important and goes to that, because it suggests that at some point after the filing of the trademark, if that's when she made the change, 1) she had to have known that there was an issue here, that she had not been using it, and you can't even file the trademark unless you've been using it; you need to be using it in commerce, and her application basically was wrong. Her priority was wrong, and that's a huge issue, because if somebody else got there first, if we set aside all the other issues, if Tara Crescent did this first in commerce, then she's the only one who could be claiming ownership of this. Instead, she finds herself having her books kicked off of Amazon. Ms. Hopkins has kicked Tara Crescent's books off Amazon despite, from at least what I've seen so far, she was the one who was first. And yet, the second person has slipped through and now is the legal owner of the trademark.

 

PAUL:

And as of yesterday, folks, I mean we are recording this on the 8th of May, so as of 7 May, to Kevin's point I saw that conversation online and I believe her entire backlist, Tara's entire backlist with that series title, has been, at least for now, suspended by Amazon so her fans have no access, she has no access to her own content.

 

KEVIN:

Yes, and people are having to retitle their series, they're having to get new covers, they're facing a lot of expenses on this. They're obviously very concerned and sort of freaked out about it, and none of this should have happened. I think this is something where if you want to trademark a series title, if she could have trademarked, I think she does even have a trademark on Cocker Brothers, which is a separate one. If you trademark something unique like that, she could have trademarked Cocker Brothers of Atlanta.

The concern here really is oh, someone's going to try to copy directly what I'm doing, then go get a unique title. That's something that you can legitimately get a trademark on.

 

I would say just as a practical matter, it doesn't necessarily hurt you if someone else has the same title. I can recall an instance, and this is in the screenwriting field, there was a case a couple of years ago, not a legal case, just two guys came out with screenplays at the same time, like in the same week, both called, I think called "Burn Run." And what happened, it was a big, like, how did this happen? And then both of them sold, which is very unusual to even sell a screenplay. So it doesn't necessarily hurt you that somebody else is running around trying to promote the same title you're using, as long as people can tell that it's a different author, and you know the cover is different, a different series.

 

If someone is taking the text of your book, if they're using your characters, if they're doing stuff that's sort of more pirate oriented, then fine, I don't think anybody would really have a problem with this. But trying to claim that you're the sole owner of this adjective that's existed for 500 years, people are not going to be happy.

 

PAUL:

I've got a great question from Melissa Baxter, who is also a member of the Facebook group, and Kevin I'm really interested to hear your response to this one. She asks, "How far does this extend? What about unique phrases, for example, titles that start with The Girl xxx? Are those also impacted? Could they be impacted? Or is it restricted to a single word, as in this case?"

 

KEVIN:

Well it could happen. People can try anything, right? And if they get through, somebody could try to trademark "The Girl" or "Girl" or... I think that these are all illegitimate, right? But it sort of comes back to, just because you're right on the law doesn't mean you have the money to fight the law. Not everybody has xxx dollars to do a lawsuit. Not everybody even has the amount it would take to go... I mean, I guess the face value of the time I spent writing up this petition and filing it on Sunday was 10 grand. Most people don't have the money for that, and so if people are trying to trademark "The Girl," if they manage to get it through, this is kind of what happens. I don't think it should get through, I think the law shouldn't allow it, doesn't allow it, but nothing stops someone from trying.

 

PAUL:

So, does this then, how does this... and Sarah Goldine, I want to thank you for this question... how does this affect everybody around the world who's listening to this right now and they don't fall under the purview of US law, they're living in England, they're living in the Middle East, I don't know. Is this something they need to be concerned about?

 

KEVIN:

Well, question #1, do you want to sell your book on Amazon? Because Amazon's in the US, right? And they have to follow US law. So you may be in Australia, well, Amazon Australia is a big bookseller, I know in the UK Amazon UK is one of their big sellers. So now you've got a US company that is... they're in a bind. There has been lots of criticism, and I hope they do what they can legally to limit the impact of this trademark, but you know, if I were Amazon's inhouse lawyer I would be sitting here going, "Well, she has a trademark. What do we do?" So authors abroad I think are going to be affected by this in that way, and then... I haven't really looked at it, I haven't reviewed the trademark law, I sort of am used to litigation, which is what this is, but trademark law I'm learning. I was all patents. But there are international treaties on this, I don't know the effect of does having a US trademark... it may give them rights internationally. That may differ country to country, but you may find someone saying, "Look, I have this US trademark and there are all these treaties with your country to enforce it, so guess what? Sorry, you can't sell this book in the UK anymore either."

 

PAUL:

So the potential damage is far-reaching. Ellie, off of Twitter, thank you for this question, Ellie, and Kevin, this is where I really want to give you an opportunity to talk about what you were just talking about, that investment of all your time on Sunday. So what can be, and what is being, done about this? And when you talk about that petition, can you kind of talk and explain what the lasting impact of that could be for situations such as these, should they arise again?

 

KEVIN:

I don't know if it has legal precedential impact beyond this trademark. It may, if the Trademark Trial & Appeal Board issued an opinion, and so their opinions would have precedential value for other appeals. You know there are very experienced lawyers, trademark experts, they'll know more about trademark law by far than I do, but they're there sort of as the backstop, and this is essentially core; it's part of the agency. So what I did was file what is called a Petition to Cancel. People have sort of ... for nonlawyers, it's not a petition in the sense of go get a thousand signatures, it's a legal document that is a petition in the sense of a request. So I requested that the Trademark Trial & Appeal Board reconsider this. Is this really a trademark or not? So that is on file. I'm the one challenging it. Other people are allowed to do this, too. It was $800 to do it.

 

I heard that the font designer for the font that she trademarked may also be looking at some kind of challenge, because apparently she filed on a font that he owns. It was a graphic design of the word Cocky, but it's his design according to what I've seen on Twitter. So I don't know first-hand about that, but that person would have rights to challenge that. Any author who has used this, or who may use this... What's called Standing is who has the right to sue... not to sue, but who has a right to file this, I think it's pretty low. A lot of self-published authors in this field would have the ability to file this if they wanted, but then they'd have to have a lawyer do all of it, and it is expensive. The Romance Writers of America, I heard, are working on something or talking to a lawyer, I don't know exactly what's going on with them, but they are definitely investigating this and they may take some action of their own. They also would be entitled to file. So people are working on trying to do something on this. The big value I think is the message it sends is, "Is this a good business strategy or not?" and I think we're going to send the message that it's not.

 

PAUL:

I hope that's what happens. This entire thing has been eye-opening for me, and watching your timeline when I tripped across it yesterday, actually it was recommended to me by a writer friend, I feel for these folks who are going through this. It seems incredibly reactive, and had you not been so impassioned, there could be a lot of authors out there who would really be paying for this. I mean, those of us who are indie authors understand the struggles and the barriers to market that we already face, and something like this could permanently damage someone's ability to stay in the marketplace.

 

So it's been frustrating, but it's still... I'm glad we have folks like you out there but at the same time, the process for me just seems completely backwards, where someone can do this and then people have to react to that fair or unfair claim by them. It's just so frustrating.

 

Last night you also made a comment in reply to someone, and you might be able to enlighten us a little more on this, about the process itself. So this petition goes in. What kind of timeline are we looking at with this entire process? Especially in the front of my brain are those folks who are directly impacted by it. What could they reasonably expect?

 

KEVIN:

There's an institution document that they create, that institutes the action. It's something they're going to send to me, something they're going to send to her and her trademark lawyers, I guess, whoever filed it, and what that document will do is basically say, from the date the PTO sends it to us, she has 30 days to file a response. And this is a legal document, it's going to be... you need to have a lawyer draft it. They will also give us the whole schedule. This can take up to 18 months at the maximum. I would be hopeful that... one thing I will say, there is the chance that this goes away earlier. If she doesn't answer it properly, if she doesn't answer at all, then I will win by default and then the trademark will be invalidated. From what I've seen online, there's some video that she posted on her Facebook that was then deleted, but I have been sent a copy, there have been posts she's made; it doesn't appear that a lawyer is advising her on these, or if it were me, I would not be advising her on these, so there may be a chance that her trademark lawyers are not really doing anything on this, and that this is sort of just her blustering. And if so, it is likely to go away a lot sooner, because if you don't have a lawyer dealing with this process, it's a situation where the other side wins by default. Things will happen, there will be dates, there will be deadlines, and she will have to make responses, and do all these various very, very expensive things that both of us have to ... I have to sink time into it, she has to have someone sink time into it, so at any point along the way, it could go away. There will be likely a summary judgment deadline, which there is in Federal Court; again, this procedure is a little different, and so I'm learning it as I go, but they follow the Federal Court rules generally which have what is called summary judgment and that is where they say look, we have enough now, we don't need to do a trial, we don't need this other stuff, let's just file a legal brief, which would be something a little more detailed than what I put on my Twitter feed on Sunday. The effect of that is the court just goes ahead and decides, "Can you even win, if we have a trial?" That's kind of the question. So that is an opportunity for me to get it done sooner without having to go the full 18 months. Although it depends where they set it; it might be closer to the end. I want it done as soon as possible because, obviously, these authors are hanging in limbo, and until the trademark is invalidated, Amazon's own lawyers are probably going to sit there and go, "Well, you know, it's on the books. What do we do?"

 

PAUL:

I don't want to be the harbinger of doom, but just listening to you, best case scenario we're looking at, what, a month and a half to 2 months by the time the PTO serves you and she has those 30 days to respond.

 

KEVIN:

Yes, and then after getting her filing, to get them to do the judgment. So it's not going to be instant, but I'm going to do whatever I can do to make it happen. I want to.

 

PAUL:

Kevin's not coming on here to draw attention to himself, but I'm not going to let him go without drawing attention to him. You've heard this, obviously we're all impassioned and we're all scared about what this could mean to ourselves and also fellow writers in the community. My heart goes out to those impacted, especially, I have the fortune, if you will, of working full-time and writing on the side, there are folks who depend on their book income to keep the lights on at home, and if there are things in the community that are going on out there to help folks, please, make sure you Tweet it to show when you listen to this episode, and I'll make sure I do my best to keep that information flowing so we can find ways to help those folks that are stuck in this.

 

What wonderful humanistic things like what you're doing, and some of the things I've seen out there, where people are going out and purchasing copies of books from the folks who are affected, and rating and reviewing them to help them, but what are things that anybody listening to this right now going, "Oh my god, I'm not ready for something like that." What can they think about doing, not only in response, but proactively, now, today?

 

KEVIN:

First of all, in general I think it would good as a community to pay more attention to what is filed before the Trademark Office, because that can happen, and I don't know maybe if there is something where an industry group or maybe any genres need to be watching, but I think this would not have happened and we wouldn't be here, if we'd had the chance to challenge it earlier. All of this stuff is public, it's all going on, it's just nobody pays attention; it's boring, it's trademark stuff; no one was really watching. So I think if somehow more people started watching that, that would be very good to make sure you can catch it before it's issued, which means Amazon, for example, wouldn't be in this position where they have legal issues. It would be a trademark application, not a trademark. So proactively that's probably the best step.

 

As far as these other authors, Tara Crescent is an example who still has a lot of her other books up, I know there are other authors who have been canceled, and I think I've seen lists going around. There's one, the new title is "The Cockiest Cowboy Who Ever Cocked," I forget the author name but she retitled her book as a flip of the finger. You can buy their books; I don't know if some of them will have lawyers of their own to deal with this. Right now I don't think there's anything I need as far as my petition, my time is free to me, and the filing fee wasn't really that much in the scheme of things. But I would go support these authors and just watch to be sure that people in general have more advance warning.

 

PAUL:

I apologize, folks, again, we scrambled at the eleventh hour to get this interview pulled off. I will do my best to link it in the show notes for those of you who are interested, I did see an artist in this timeline, in this discussion, who offered her services to redesign covers for those impacted, and I feel bad, if you're listening, I forgot who you are but I promise I will link your tweet so folks can find you out there, and maybe we can show you some love on the back end for doing things like this.

 

Now, with all that being said, Kevin, I do want to thank you for your time. This is an incredibly important issue. For a lot of us, and Kevin, you know this, we write on the side, early in the morning, late at night when we get home from a long day, and it takes enough for us to get into the marketspace as it is, and things like this are just absolutely frightening, we don't understand them, and you've come on and really helped ground us with what's going on, and I feel personally, much better knowing someone like you has their hands in this, and just hearing the determination in your voice, and I do feel a sense of optimism. Again, I'm not personally impacted. I don't want to come across sounding apathetic, I'm definitely not, but at the same time, knowing that there's somebody like you out there working it... from the community to you, I want to thank you for your efforts. I know you're not asking for that, but I do want to thank you.

 

 

Transcribed by Allie McCormack, medical transcriptionist extraordinaire ;)

@AllieMcCormackK on Twitter!

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