Now someone attempted to trademark the word “forever.”
Is this kind of nonsense going to go on forever[SUP]TM[/SUP]?
Why do you label this nonsense? Again, what’s so different about trademarks involving romance works using “Cocky” and “Forever” as opposed to sci-fi trademarks like “Star Wars” or “Star Trek” or superhero trademarks like “Avengers” or “Justice League”? What exactly is the problem here on either a commercial or a legal or a moral basis?
Is it because you think that romance novelists can’t have distinctive brands of their own?
Perhaps you’re right.
I think I’ll quickly write three trashy romance novels and put them on Amazon for $0.99 each.
The titles will be
Love in the Rose Bushes
Love on Mount Everest
Love in the Rain Forest
Then I’ll trademark the word ‘love’ in romance novels, and sue anyone who tries to use it. :D
Romance novelists (or anyone else) can’t trademark a common word as a title and prevent anyone else from using it.
She could have trademarked “The Cocky Series” or “Cocker Brothers” or even “Cocky” specifically in her font (assuming she had the right to use the font in that way, which she didn’t). What she can’t do is trademark the word “cocky” and prevent anyone else from using that word in their book titles.
Especially since there were at least 17 other books (probably more) that used the word in their titles before she ever did.
You really don’t see the difference between using trademarking a whole name and trying to trademark a single, very common, not made up, word?
If Gene Roddenberry had tried to trademark ‘Star’, and then sued George Lucas for calling his movie Star Wars, that would also be stupid.
They can have brands of their own, sure. Like “The Cold Lake Chronicles.” What they can’t do is trademark a single word that no one else can ever use again in their titles, including title of books they have published prior to the trademark.
This would get ridiculous. For instance I wrote several books that all had “Bad” in the title. Should I get to trademark “Bad” so that no other writer can use it in a title ever? Really? But probably I couldn’t get away with titlilng a book “Bad News Bears” although I think it wouldn’t be strictly stepping on someone else’s intellectual property unless it were about baseball. I certainly couldn’t get away with trademarking “Bad” and then coming back and saying they had to now retitle their movies, which was essentially what this writer did.
Just recently there were two books titled Life After Life that, IIRC, came out at approximately the same time, by two different authors. There are two movies titled The Girl on the Train, one of which is from a bestselling book by the same title and I don’t know where the other one came from. It’s allowed for artistic freedom and maybe it causes some confusion but there’s a tradition here of not copyrighting titles.
This keeps getting weirder. Now Faleena Hopkins is suing the lawyer who tried to get her trademark rescinded, as well as people who are doing an anthology.
I honestly don’t see what this woman hopes to gain–it certainly isn’t the goodwill of the space she has to play in.
Maybe she believes becoming famously stupid is better than no fame at all.
If we’re not careful we’ll end up with the situation that Little Nemo finds when he visits Mars (comic strip, 1910).
Mr B. Gosh owns the whole planet, including the air and all the words. The inhabitants of Mars have to pay for air to breathe, and purchase words if they want to speak. On Mars “the rich folks can talk, the poor have to keep still”.
You can seek registration, but you, like Faleena Hopkins, will have to prove to a trademark examiner that “Love” is a distinctive term capable of identifying the source of goods in the market you’re asserting rights in. You may validly define that market as “trashy romance novels sold on Amazon for 99 cents each.”
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Yes, a common word can be a trademark. However, a common word that is not distinctive for the applicable goods or services is not a trademark, and a common word that is being used in its generic sense can never be a trademark. Do you have the research to prove that “Cocky” as used by Faleena Hopkins is being used in its generic sense?
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The phrase “trademark a common word as a title” is meaningless in the law. She is registering a trademark. A title of a work is not a trademark. The name of a series of works, however, can be a trademark.
Most trademarks are standard character marks, which means the typeface or other font characteristics are irrelevant.
You don’t need to obtain any right to use a font in any particular way, even if a specific font is part of your brand identity.
And you know this how?
The fact that there are prior uses of a term doesn’t necessarily prevent that term from becoming distinctive and thus becoming a trademark through use in commerce. The existence of prior uses might be proof of a lack of distinctiveness or that a term is generic, but you have to make a much more detailed argument than you have made here to get to that conclusion.
Lots of single, very common, not made up words are registered as trademarks.
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The question of whether or not she has valid trademark rights is different from the question of what those trademark rights would allow her to prevent other people from doing. Two different issues.
It seems to me that a lot of the people in this thread—and maybe even Faleena Hopkins also—don’t actually understand what a trademark is, what you must prove to assert trademark rights, what the difference is between having a trademark and registering a trademark, and what having trademark rights gives you the ability to do.
To emphasize, I am not saying that “Cocky” is definitely a valid trademark in Faleena Hopkins’s line of business and that the registration is valid. I’m saying that it takes a lot more proof and complex argument to say that it isn’t than is being demonstrated here, especially when the PTO has already agreed once that this trademark is a valid, registrable trademark. I’m saying I don’t know. I’m encouraging folks in this thread to entertain the possibility that they don’t know either.
Actually, firms defending their trademark have been known to send letters with language like, “When you use Scrabble, the proper way to write it is SCRABBLE(r) Brand Word Game.” That does not mean I actually have to do that. These people are just defending their trademark and trying not to let it become a generic word (like aspirin).
There are trademarks, trade names, and trade dress. If you try to trademark a generic and not very descriptive term like “GoodHealth 2000” for a certain process you have devised, you can use it all you want but you can’t actually stop anyone else from coming up with their own “GoodHealth 2000” and also using it. I know this from responding to a demand letter saying to stop using “GoodHealth 2000” where, after some research, my response was something like, “We are well aware of the costs of litigation and have buckets of money and lawyers on staff so do your worst. We’re using this term.”
If you made up a word, like “Kleenex,” and trademarked it, then you can try to stop people from using it as the generic word for a paper noserag. Note I said “try.” Good luck with that.
Or here’s an example. You have come up with a new copying technology and you decide to use the term SCAN to describe it. You trademark the term, and you then try to prevent people from using SCAN to describe any kind of copying that doesn’t use your patented technology, or if they do use it in print/pixels to use it uppercase with an R. Only you can’t, because the term “scan” has already been used this way for years. But if you come up with a new term, like XEROX, then you’re on a somewhat different footing. If you see news stories referencing people “Xeroxing” things, they are obviously using your term. Again, good luck trying to stop this but you’re at least not trying to stop people from using a term the way they’ve b een using it for years. (This is only an example. Xerox didn’t make up the word, they found a word and repurposed it. I do think, however, that Bayer made up the word “Heroin” for their trademark, and you can see how that one’s gone.)
So here’s the problem with “Cocky.” It was used in titles before this author started publishing. She seems to be trying to get people to retroactively change the names of their titles, covers, and all that, without regard to the fact that it is impossible to recall all copies of any book that ever used “Cocky” in the title. So her trademark is doomed to be defiled. As far as I know there is absolutely no precedent for being able to trademark a single word in a title, and it would be a very bad precedent because there are lots of words that get used in many, many titles. Want to trademark “Stranger”? How about “Girl”? How about “Suspicious”? How about “Gone”? I could go on and on. Find a word that has NEVER been used in a book title.
Consider the word “batman” A batmanis a soldier or airman assigned to a commissioned officer as a personal servant, but you probably knew that already. It’s a single, fairly common, not made up word after all.
Suppose someone wrote a Jeeves and Wooster style series of books in which the hero is a military valet. The word batman is frequently used in the titles: My Amazing Batman, My Batman Saves The Day, My Batman Sees It Through, etc.
Do you think that DC Comics would be unreasonable to sue?
“I Was Kaiser Bill’s Batman.” (Actual song title.) I don’t think DC sued, or if they did they didn’t win, because there it is under that title on Youtube.
Different sort of batman. 
‘Batman’ is hardly a common word, like ‘cocky’. THAT is like them trying to trademark ‘bat’, because they have characters names Batman, Batgirl, Batwoman, Batwing, Man-Bat, Bat-Mite, Bat-Woman and Bat-Girl, then suing Marvel over THEIR Batwing, and Bats the Basset Hound.
IMO there’s a significant difference between “technically this might be possible” (answer: sure, if you say so, how would I know) vs “this is sensible and reasonable” (answer: not a chance in hell, and you don’t have to know the law to figure that out).
The font (typeface) that Hopkins attempted to trademark the word “Cocky” in was purchased from a source that specifically stated in their TOS that users could not use it as part of a trademark.
I don’t know how this is relevant to what I said. Yes, people will send letters like that, and, yes, they have no legal import. That has nothing to do with what I said about standard character marks. Someone who has rights in a standard character mark is asserting rights in a name, word, term, or phrase in the words or lettering regardless of their appearance.
“Trade names” are not an issue in trademark law. They’re an issue of business or corporation regulation, in the U.S., these are pretty much state law issues, not federal issues.
Trade dress is something that hasn’t been brought up in this discussion, but it is related to product and packaging design. So far as I know Faleena Hopkins hasn’t asserted trade dress rights, and the only trade dress I can conceive of in this situation is the design of her book covers.
“Generic” or “descriptive” have meaning only with respect to the specific goods or services being claimed. So exactly what that “certain process” is is important to know.
Maybe you can and maybe you can’t. You haven’t offered enough context to even begin judging.
You’re about non-trademark uses here. “Kleenex” is indeed a registrable and enforceable trademark. If Kimberly-Clark’s competitors use it on their facial tissues, it will be infringing.
The fact that it was “used in titles” is by itself not enough to tell you whether the use that is asserted in the registration is a distinctive use.
For example, above it was suggested that someone might try to assert the use of the word “Love” at the beginning of the title of a romance novel as a trademark.
The question is not only whether “Love” has appeared in titles of romance novels, but whether “Love” as asserted by such a putative trademark owner is being used for its ordinary significance, and is a word that competitors can’t effectively market their books without.
A word like “love” is very obviously an important word for romance books to adequately describe their stories. It has a direct connection to the genre. It simply isn’t obvious that the word “cocky” has that kind of relationship.
Again, what the scope of her trademark rights are is a different question of whether the registration as issued is a valid registration. She might be wrong about one and right about the other.
A title by itself is not necessarily a trademark use. For example, if someone were to publish a book called “Diary of the World’s Biggest Star Wars Fan,” or a newspaper article called “Star Wars is the Most Successful Franchise in History,” these would not infringe the Star Wars trademark, because they are not trademark uses. Titles are not automatically trademark uses.
So it’s entirely possible that Faleena Hopkins might have a valid trademark registration but she’s mistaken about what it gives her the ability to do to her competitors.
My first instinct is that this is an unenforceable and ineffective restriction.
The rights that a font dealer has is to the software only, not to the appearance of the typeface. Typefaces are unprotectable.
Second, I believe that a court determining whether there’s an enforceable trademark has no basis to consider the font dealer’s terms of service. Whether the trademark owner has the right to use a font is not one of the elements of trademark rights.
Third, the registration is for a STANDARD CHARACTER MARK, so the specific appearance of the typeface or font is irrelevant to the scope or enforceability of the putative trademark.