There’s a cocky update to the case of a romance author setting fire to the goodwill of all of her fellow authors and trying to trademark the word “cocky.” The proceedings have made it to court, as author Faleena Hopkins filed for legal injunctions against other romance authors publishing books with “cocky” in the title. At least in round one, as you’ll see, this did not go well for her.
On June 1, Judge Alvin Hellerstein of the Southern District of New York denied the injunction Fallacious Hopkins wanted to prevent the publication of other books with the word “cocky” in the title. So that’s progress for the side of not using trademarks to attack other writers. Judge Hellerstein also declined to make a summary judgment on whether the trademark was valid, saying it was too early.
Unlike some breathless headlines would have you believe, this isn’t the final word or even close to the end. There’s still a lot of time and work and money spent coming for the authors trying to defend themselves. (And on Faleena Hopkins’s side as well, but you’ll forgive me if, as a writer, I don’t feel that sympathetic.) The case is now continuing on to discovery (which the judge has given three months for), though the lawyers for both the remaining defendants said they were planning to file motions to dismiss.
So stay tuned for the continuing adventures of #Cockygate.
While we wait, as a treat for all of us watching this at-times laughable and at-times deeply worrying train wreck, romance author Courtney Milan bought a copy of the transcript and has publicly passed around the link for the PDF on her Twitter. There are some absolutely golden exchanges in it, which I have quoted for you below.
But first, if you’d like to thank Courtney Milan for her public service, a great way to do that is to buy one of her books. I personally recommend Unraveled, which is even topical since it involves a judge (who is named Smite), even if at no point does he carefully describe for the record what the cover of a romance novel looks like.
Courtney has also suggested helping out the authors affected by Cockygate by buying their books as well, which is a great idea since this ain’t over yet. Which is a great idea! Check out:
Sexy Nerd by Kayley Loring
Arrogant Fiancé by T. L. Smith
Cocky Roommate by Claire Kingsley
The Cockiest Cowboy to Have Ever Cocked by Jamila Jasper
Her Cocky Doctors by Tara Crescent (this book makes a special appearance in the transcript!)
Cheeky Royal by Nana Malone
Cocky Duke by Sara Forbes
Now on with the show, with occasional commentary from yours truly. Please keep in mind that I am not a lawyer, and I have never played one on TV. What you need to know here is that “The Court” is Judge Hellerstein, and Mr. Cardillo is Faleena Hopkins’s lawyer. The other speakers are lawyers for the various involved defendants that Faleena is going after.
MR. CARDILLO: When you think of “Cocky,” you don’t think of a romance novel. You might think of a bar fighter, a prize fighter, someone who has done very well in school.
THE COURT: You think it is suggestive of male prowess?
MR. CARDILLO: I think it is suggestive of it you walk through a few steps, you would get to a romance novel. That is what we are protecting here, the use of the word “Cocky” on the cover of a romance novel.
THE COURT: You said it is not descriptive of anything or suggestive of anything. It seems to me it is at least suggestive of male prowess in a romantic situation.
MR. CARDILLO: I would say at the least we are in the suggestive category, which is worthy of trademark protection.
THE COURT: All these books have to do with the prowess of males?
Look, I just like imagining a judge saying the phrase “prowess of males” over and over again in a very serious and sober way.
THE COURT: You are arguing, looking at Exhibits 1 and 4, Cocky Roomie is an adjective.
MS. LACKMAN: Correct.
THE COURT: And Cocky Mother’s Day is what?
MS. LACKMAN: Cocky Mothers Day, “Cocky” describes the contents of the book. It is an adjective that is descriptive of the book.
THE COURT: I don’t see that. Let’s talk about Exhibit 4, Cocky Mothers Day. There is no connection between “Cocky” and “Mothers Day.”
MS. LACKMAN: There may very well be. I haven’t read the book, your Honor. But there is an impression or suggestion here that based on the image that is shown, based on the genre, Cocky Mothers Day refers to some event on Mother’s Day or relating to Mothers Day or mothers themselves that might involve some male prowess… [truncated by Alex]
THE COURT: Cocky Mothers Day is clearly not an adjective.
MS. LACKMAN: It is an adjective of the book.
THE COURT: If it is, it is nonsensical.
I both sympathize with Judge Hellerstein’s confusion and probably annoyance over a really bad title (because really, what does it mean), and hope that he will never be in charge of critiquing any of my book titles. But it is worth noting that it does matter if “Cocky” can be established as an adjective or not for this weird title, since that’s something Ms. Lackman made a real point of when it came to the other titles in question.
MS. LACKMAN: Exhibit 1 is about a cocky roomie, and Exhibit 4 has something to do with there is a Mothers Day plot or something along those lines, and it involves the assertion of male prowess.
THE COURT: I can see in number 1 it shows a male stripped to his waist, a tattoo on his arm, defined biceps, defined abdominal muscles, with a certain look of haughtiness. It seems to me that the title here, Cocky Roomie, is a description of the type of roommate this person is or this person has.
As to Exhibit 4, Cocky Mothers Day, the depiction is of a young man in an open collar sport shirt, various items of what appear to be a watch and cosmetic jewelry on his wrist, in a pose that also shows a certain haughtiness. What this has to do with Cocky Mothers Day is anybody’s guess.
If I got a puerile giggle out of imagining a judge saying “male prowess,” that’s nothing on him describing the covers of these books. (And taking another dig at that vexing title.)
MR. CARDILLO: Your Honor, since this started, the whole Cockygate thing—
THE COURT: I know about that, but it is really irrelevant.
Judge Hellerstein is not even playing.
MS. LACKMAN: The Cocky Cage Fighter series, I believe. It came out in 2015.
MR. CARDILLO: Your Honor, we wouldn’t dispute that you can use the word “Cocky” in the Cocky Cage Fighter as an adjective.
THE COURT: Case Fighter?
MR. CARDILLO: Cage Fighter, where you are fighting in a cage, a metal cage. We wouldn’t dispute that somebody can use that. That is not what our application is for. Our application is very specific to the way we use “Cocky.”
First, I like that we needed to explain cage fighting in court. Second, this exchange left me wondering just how specific of a way this is. The argument seems to be it’s about a series title, but if you read the whole transcript, it’s even in dispute if the series has been historically called that. A series about Cocky Cage Fighters is then established to be okay, but then Faleena is going after Ms. Lackman’s client for book titles, rather than a series.
If someone who is better at this stuff than me understands what’s going on, please do let us know in the comments. Because right now it just sounds to me like the specific way in question is “people Faleena is mad at/thinks she can get money out of.”
THE COURT: No. I’m looking at the Polaroid factors, which there are eight, which measure likelihood of confusion. That is the ultimate issue in this. The first is the strength of the plaintiff’s mark. It seems to me at this stage in the litigation that it is a weak mark at best. The next factor is the similarity of the plaintiff’s and defendant’s marks. In looking at Exhibits 2 and 3, Ms. Lackman what is the trademark.
MS. LACKMAN: My client’s trademarks, if there are any, on her books are her name, and that is pretty much it. What I’m hearing from Mr. Cardillo is that he says there is no issue with the series of books called Cocky Cage Fighters, but my client can’t put out a book called her Cocky Firefighters. These are titles. These are not trademarks.
THE COURT: What is the content of Her Cocky Firefighters?
MS. LACKMAN: It appears to be a male-female-male romance. Beyond that, I imagine it involves one or two of the male characters is a firefighter.
THE COURT: In other words, it’s descriptive of the contents?
MS. LACKMAN: Absolutely.
THE COURT: Cocky Doctors?
MS. LACKMAN: Same thing, yes. Same with all the other books that we put before your honor.
THE COURT: Two male figures. One seems to be wearing a stethoscope, indicating he is a doctor, but he is stripped to the waist.
MS. LACKMAN: Doesn’t look like my doctor, your Honor.
THE COURT: Another one also has a stethoscope, and he is also stripped to the waist, maybe below the waist, with a heavily tattooed arm. These are descriptive of a certain kind of doctor who is not necessarily a doctor but somebody suggestive of male prowess.
If you’re curious about the Polaroid factors, here’s a link for more information.
MR. BOCZKO: Also, your Honor, the book is called Cocktales: The Cocky Anthology, and it features a rooster or a cock on the cover. Here are the papers for your Honor. It was intended as a form of protest and parody of their attempt to monopolize that.
THE COURT: I am not going to keep the book.
MR. BOCZKO: That’s quite all right.
THE COURT: The second factor in the Polaroid factors is the similarity of plaintiff’s and defendant’s marks.
MR. CARDILLO: They are identical. I’m sorry, your Honor.
THE COURT: They are similar.
I’m going to guess there’s a nontrivial distinction between “identical” and “similar” here.
MR. CARDILLO: It is the last exhibit, your Honor, Exhibit P. There are three different pages. Each one represents a different communication to the author Ms. Hopkins, telling her how these consumers were confused, bought the wrong book, and were misled by the titles.
THE COURT: What is the source of this?
MR. CARDILLO: These are consumers, your Honor. These are pictures of actual communications between them and my client, who is the author.
THE COURT: How do I know that? There is no address.
MR. CARDILLO: I believe they are pictures from her phone of the communications. I can certainly aver to the fact that they are legitimate.
THE COURT: I can’t credit this as indicating actual confusion. The other instance that is mentioned is a reference on a web page or a criticism. It’s unreliable. No one knows who placed it. No one knows who sent it, nor the purpose. So I can’t find there are instances of actual confusion.
I would think this is something that will get cleared up if the case proceeds, but this seemed like a bit of a “whoopsie.”
MR. CARDILLO: Your Honor, I would say that my client has 600,000 books sold as of today’s date, or approximately 600,000.
THE COURT: That doesn’t prove quality.
Can Judge Hellerstein take a brief vacation over to sci-fi world and please tell this sternly to certain writers who obsess about sales numbers as some kind of proof of quality?
But seriously, Courtney Milan explained on her Twitter that this isn’t actually a zinger, even if it’s fun to read, and the real story is interesting. (What I’m really trying to say here is that if you’re not following Courtney on Twitter yet, you really should be.)
THE COURT: Eight is the sophistication of the purchasers. It seems to me the readers here are very well acquainted with these kind of romance books and are very careful about who wrote them. I suggest to you that we have sophisticated purchasers here.
Aw, shucks. I hope you feel complimented, fellow romance readers. I did. Though this isn’t so much saying we’re smart (we are), but that we know how the heck to sort through books and discern between them, and find what we want. (I had to look up what was meant by “sophisticated purchasers,” and this blog post helped.) This, in contrast to Faleena’s lawyer’s filing that says the readers are unsophisticated, since I guess we can’t tell the difference between books that have “Cocky” in the title. Which yes, does feel pretty insulting.
We’ll see what happens next, whether it’s a dismissal or more proceedings in 90 days!