The Case Of The Trademark Troll Author

By Jamie McSloy / May 8, 2018
trademark troll author featured image

Whenever I take a weekend off I come back to some crazy, stupid Internet stuff.

In my absence this weekend, it turns out some author has decided to trademark the word “cocky” for use in romance titles.

This has caused a storm online and I know of several people who’ve received takedown notices on their works.

A few more have received an email from the author and current owner of the “cocky” trademark saying that if they change the name of the book, change the name of their branding and redesign everything, then she won’t press a legal case against them.

Now I don’t care about gossip and this is relevant to maybe the 1% of people that visit this website because they want to be authors.

But there are some interesting lessons here.

You Must Know Your Legal Rights

I have written time and time again on the site that if you are in business for yourself, then you need to understand the laws that affect your business.

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I am not a lawyer and this is not legal advice but I know somebody who took their book down over this stupid scandal and they retitled it, rebranded it and otherwise gave in to this author’s demands.

This is not something I would’ve recommended. What I would’ve recommended is to wait and see and in most likely outcomes, this would be enough.

Here’s the thing: when you seek a trademark, you are supposed to use the process to protect something that is unique or novel to whatever you’re offering. If you are doing something original, then trademark will protect you from people who will take the product or brand you’ve established and sell your name as their own.

Again, I am not a lawyer, but I cannot imagine for one second that this trademark will hold up because there is nothing novel about using the word “cocky” in a romance title. The author who has trademarked the term, Faleena Hopkins, wasn’t at any point using the term exclusively. In fact, she renamed her series after the trademark went through and so wasn’t using it at any point at all until this trademark trolling attempt.

Finally, she wasn’t the first person to use it. Other people have claims to the word and thus the trademark, (such as it is,) that will invalidate her claim as soon as it comes to court.

Ergo, to fall for her intimidation tactic of a letter is to not understand your rights and her rights.

However, there is something important to be learned from this and it is important for every businessman in the coming years.

We’re In The Legal Survival Business

I have written extensively about the gig economy, about how big corporations are bad, and about how you as a business person and a person in general need to be aware of your rights and the realities of your economic situation.

Trademark trolling and general intimidation tactics are going to become more common than they already are.

I have experienced this myself. I have had people come to me and threaten all kinds of legal action. If you are a freelancer for more than five minutes, you will have somebody threatening to sue you. They will threaten to sue you when they don’t want to pay you. They will threaten to sue you when you are trying to get paid. And you’ll be threatened with all kinds of stupid lawsuits which can’t actually ever happen in reality.

If you don’t know your rights, like a lot of people don’t, then you are at the mercy of who are essentially scammers.

People with threatened lawsuits and they don’t know what they’re doing. This can’t be you, and you cannot allow your business to be impacted by these people.

Nobody is going to tell you about this when you start business, (well, except me.) Chances are you’ll have to learn the hard way.

There will be bigger fish than you. You must stand your ground.

There will be people that want what you have created. You must stand your ground.

There will be people that don’t want to pay you what you’re worth. You must stand your ground.

If you need to, then consult a lawyer. Even if that is only to assure you that what you’re doing is correct, it is worth the thirty minute free consultation or hourly rate.

Here’s the big secret.

Most Lawsuits Aren’t Cost Effective

Let’s go back to our author. This gets to the heart a lot of things, and is why I’m recommending that you stand your ground in most cases and consult a lawyer before standing your ground in others.

Most people who threaten legal action cannot actually go through with it. Either they don’t know or otherwise don’t have the money to repeatedly go to court. Now, I don’t know how successful Faleena Hopkins is as an author, but I do know that if there are hundreds of titles with the word “cocky,” in the title, she is unlikely to be able to bring lawsuits against people that use that word.

Especially when her claim is dubious and likely to be thrown out as a trademark the first time she tries.

Most legal threats are empty, and this is why you need to learn the law.

Trolling As A Business Model

Let’s look at this from another angle. The author who has trademarked the word has taken to Twitter and Facebook to talk about how she’s been persecuted for this saga, and how funny she finds that people are upset.

This is honestly a terrible business model.

There are a lot of people who play the professional victim, and there are a lot of people who play the, “I am such a troll but I’m anti-fragile,” business card.

Almost universally they fail. As an experiment, I have been following a few people that tried this before in various niches. Universally their businesses tank after a time.

People get sick of it and even outside that, if you’re constantly trolling, upsetting people, and otherwise building a business around negative publicity, eventually you are going to bring about negative consequences for yourself.

That might be a public shaming episode. It might be somebody who brings a lawsuit against you. It might simply be that people refuse to work with you because of your bad business reputation.

If you find a trademark and people query it, the worst case scenario is that your trademark will be invalidated. This might cost you money, you will certainly cost you time and money to file the trademark at first.

On the other hand, if people lose income over this, which they are doing, then you can expect people to come for the money that they have lost. The trademark troll becomes expensive for you because you are paying for people’s potential lost income.

And you also have to deal with damage to your reputation that you’ve caused.

Finally…

One thing that struck me about this more than anything else is that people don’t know the law. People don’t know legal rights, and much worse, people make them up.

Faleena Hopkins has said that trademarking the word “cocky” is a case of helping the industry mature. This is a load of rubbish.

She has also said that this move was to stop piracy of her books. This is also rubbish.

And she has said that she is doing other authors a favour by making them change their business practices so as to avoid legal recrimination from her. This is likely to be an incredibly costly mistake, and also a load of rubbish.

And the craziest thing here is that some of her readers are defending her (citing legal stuff that is just plain made up,) other authors are saying that there is no hope and that her trademark will be valid, and further authors are changing their book titles and other assets in order to accommodate this.

You need to understand the law people. Your business and lifestyle depend on it.


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