Alarm bells rather than wedding bells are ringing in the insular but passionate world of romance novels as authors and publishers grapple with the question whether an author can claim exclusive rights to use “cocky” in book titles.
It started in early May, 2018. A self-published author named Faleena Hopkins obtained a registration for “cocky” as the the trademark for “a series of downloadable e-books in the field of romance.” Hopkins’s tomes include such titles as Cocky Cowboy and Cocky Senator. Registration in hand, she sent cease-and-desist emails to other authors who had published books similarly titled. Hopkins also reported the alleged infringements to Amazon, which removed a number of the titles from its Kindle e-book store.
Some of these authors responded by re-titling their books. Jamila Jasper, for example, changed the title of her book from Cocky Cowboy to The Cockiest Cowboy to Have Ever Cocked. Hopkins’s campaign, not surprisingly, aroused intense emotions, and not only in the Twitterverse. Kevin Kneupper, an author and retired lawyer, filed a petition with the US Patent & Trademark Office (PTO) to cancel Hopkins’s registration. He is being supported in this by the Romance Writers of America (RWA), a nonprofit trade association. The RWA contacted Amazon to resume selling other writers’ Cocky titles, with some success.
Sniggering aside, this case actually raises a real trademark issue. Hopkins’s claim is, of course, that Cocky has been established as her brand–readers seeing Cocky in the title of a romance novel will identify it as one of her books. Her detractors claim that the word is simply descriptive of a particular subgenre of romance novels. For example, readers with a taste for historical “bodice-rippers” are guided by the cover and the title to their favored format. Likewise, lovers of medical romances will look for books with “doctor” in the title. So a reader who obtains fulfillment seeing a heroine break through the hero’s arrogant front would be aroused by a “cocky” title.
Whether a descriptive term can be protected as a trademark generally turns on the term’s “secondary meaning,” which is the extent to which an ordinary consumer would associate the term with a particular source. For example, one could argue that Star Wars is descriptive of a genre of space opera, but the term has unquestionably established secondary meaning. Secondary meaning is a factual question, usually established through consumer survey results. Hopkins’s challenge will be to establish that romance readers think of Cocky books as Hopkins books. The resolution is in the hands of the PTO.