A book’s title is not protected by US copyright law, but it can sometimes be protected by trademark law. A title of a single work may be protected if the owner can prove that consumers associate it with a particular source, but only a title used for a series of works (two or more) can be registered with the US Patent and Trademark Office.
In April, Hop Hop Productions, Inc., a company owned by Faleena Hopkins, received two trademark registrations for COCKY for use in connection with “a series of downloadable e-books in the field of romance.” One registration is for the word itself (a “standard character mark”); the other is for the word in a stylized font.
Hopkins is the author of the “Cocker Brothers” romance novels. The title of each of her books begins with the word “cocky.” Titles include “Cocky Roomie,” “Cocky Senator,” and “Cocky Cowboy.”
In May, Hopkins began demanding that other authors rename any books that used the word “cocky” in their titles. Hashtags #CockyGate and #SaveCocky quickly began trending on social media, with authors and readers and writers alike sharing their opinions about the issue. Many were outraged.
To protest, forty authors calling themselves the “Cocky Collective” collaborated on an anthology entitled “Cocktales.” Hopkins then filed a lawsuit against three defendants: Jennifer Watson (the publicist for “Cocktales”), Tara Crescent (author of “The Cocky Series” of romance novels) and Kevin Kneupper (a lawyer who had filed a proceeding with the Trademark Trial and Appeal Board, seeking cancelation of the COCKY trademark registration).
She promptly filed a motion against all three defendants, seeking an order banning them from advertising and distributing Cocktales and any other publications using the COCKY trademark or variations of it, and an order staying (that is, temporarily halting) the cancellation proceeding.
Last Friday, the judge hearing the motion removed Kneupper from the case all together, and also denied the requested order regarding use of the word “cocky.”
He said that, at least in this stage of the litigation, it seems that COCKY “is a weak mark at best,” that the defendants do not appear to be using the word “cocky” in a trademark sense, that romance-novel readers are sophisticated consumers, and that the plaintiffs were able to prove neither that their mark merited protection nor that the defendants’ use of a similar mark is likely to cause consumer confusion.
This ruling does not end the dispute, however. Unless the parties reach a settlement, Kneupper’s cancellation proceeding will continue at the Trademark Trial and Appeal Board, and the infringement suit will continue against Crescent and Watson.
If Hopkins is ultimately successful in the suit, the defendants may be ordered to stop using “cocky” in their book titles and to pay Hopkins money damages, measured either by Hopkins’ losses resulting from the infringement or by the defendants’ profits.
To succeed on a trademark infringement claim, Hopkins will have to prove that she has a protectable ownership interest in the COCKY mark and that the defendants’ use of the mark in connection with romance-novel titles is likely to cause consumer confusion.
Given the judge’s statements in the hearing on the motion for preliminary injunction, however, it seems unlikely that Hopkins will be able to establish that readers are likely to be confused by the defendants’ use of the word “cocky” in their book titles.
Please feel free to contact us if you have any questions about protecting your trademarks or defending yourself from accusations that you are infringing someone else’s trademark rights.
