Author Topic: Trademark, series, titles, and...yeah...lawsuits (Cockygate & ordinary-word TMs)  (Read 88815 times)  

Online Rick Gualtieri

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If this author is using the TM to protect her work, I'm all for that. If she's using it to unjustly intimidate other authors, I'm against it, and I think the courts will be as well.

I dont think many of us would have a problem if shed trademarked her series name, but instead she grabbed a single fairly common word.

Kind of like if I wanted to trademark mine, The Tome of Bill, but decided to just grab the name Bill. Its too far reaching to be taken as benign at face value.


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Online SummerNights

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I'd like to clarify something here. I've noticed that this author has been getting some bad press and there are only accusations, at least that I can find, that she has actually used this TM to threaten or bully anyone. Let's wait and see if any of these accusations are true before we decide to judge this author. I didn't post the link to one of her books for people to go and jump all over her. I posted it to show the use of the TM in this case.

One of the links I posted earlier explained some reasons that authors might be best served by using the trademark system. I don't have a problem with anybody protecting their IP by using a TM to protect their interests in cases where a copyright is insufficient. One of the cases raised in the link I posted was that a copyright might not be enough to protect your pen name.

To the chagrin of many, the courts and the Copyright Office have made a bright-line policy determination that titles, names (including pen names), short phrases and mere listings of ingredients (as in recipes), no matter how clever, do not possess enough original expression to warrant copyright protection.

If this author is using the TM to protect her work, I'm all for that. If she's using it to unjustly intimidate other authors, I'm against it, and I think the courts will be as well.

The author is a member here. Maybe she could enlighten us.

Offline Catchy

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I had my Google ad pulled because my tag line said, "Ace the glance test." I'm a book cover designer. Some Ace Towing company claimed I was infringing on their trademark, LOL. Apparently if you have enough $$ you can own anything, even a word.

Offline AmpersandBookInteriors

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I don't think she agrees because she just posted on 20BooksTo50K about how she had to do it because apparently her readers couldn't tell her books from other books with the word "cocky" in the title (insert eyeroll) and also because everyone was copying her.

I love watching people set themselves up for utter failure. Have fun with the next few years of personal grief and lawsuits, ma'am.


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Offline Sam Kates

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Now, if Amazon or others end up removing your books on the guilty-until-proven innocent principle, then that's another story. But, then at least you'll just be dealing with Amazon, and they usually eventually come around on these things.


This is precisely how the Zon seems to operate - Julie's thread is a timely illustration. All it takes is some sort of bot-induced flag (do they have them for TMs? If not, perhaps that's coming) and we spend days or weeks or months trying to prove our innocence, while, worst-case-scenario, our account is suspended. And all because someone sneaked beneath the radar and TM'd a commonly used word?

Something is rotten in the state of Denmark.
 
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Online Atlantisatheart

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I don't think she agrees because she just posted on 20BooksTo50K about how she had to do it because apparently her readers couldn't tell her books from other books with the word "cocky" in the title (insert eyeroll) and also because everyone was copying her.

Thanks, just went and read that and maybe she could have suggested to her readers to check for her name on the book. I noted they turned off commenting and a friend on there said that they'd deleted earlier posts by the admins that were sticking up for her because authors were miffed and not towing the 20 books dictate that she's done nothing wrong.


Online Perry Constantine

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I don't understand why people feel the need to do this. Another author posted a story where she inadvertently learned she published a romance book with the same title as another romance author. She contacted the author and apologized. The other author said it was no problem and even promoted her book.

We need more indies lifting each other up, not tearing each other down.


Edited.  PM me if you have any questions.  --Betsy/KB Mod
« Last Edit: May 05, 2018, 03:44:20 AM by Betsy the Quilter »

Offline AmpersandBookInteriors

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I don't understand why people feel the need to do this. Another author posted a story where she inadvertently learned she published a romance book with the same title as another romance author. She contacted the author and apologized. The other author said it was no problem and even promoted her book.

We need more indies lifting each other up, not tearing each other down. I'm so sick of this BS.

But Perry, there's MONEY INVOLVED. We must become VICIOUS and RUTHLESS in our quest for MORE.


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Offline busywoman

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The Trademark office should not have allowed registration of the word "Cocky" by itself. If it's for a series it should have been registered for "Cocky series". The USPTO was simply wrong to issue such a broad registration.

However, despite being registered it can be challenged on any basis it could have been challenged originally, for up to 5 years. Five years is when it becomes much harder to contest (so called "incontestible").

« Last Edit: May 04, 2018, 04:42:51 PM by busywoman »

Online SummerNights

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I really hope that the affected people will stand up to her or this could set a terrible precedent.

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Well, we should have seen this coming when Ford blocked Musk by filing for a trademark on the "Model E" so Musk couldn't have S.E.X. with all those seriously hot Tesla models. With a little ingenuity, Musk got his S.E.X. in the end. He just used a creative type font for the number 3 so it looks like an E. Now he's working on the Model Y. I hope he filed a trademark for that!


Edited.  PM me if you have any questions.  --Betsy/KB Mod
« Last Edit: May 04, 2018, 05:19:30 PM by Betsy the Quilter »


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Offline RJ Crayton

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I've read through the thread thus far, and there's been mention of Amazon intervening. Does anyone know this for a fact? Trademarks are not covered by the DMCA, so I'm wondering what reason they'd take it down. And if she is alleging a copyright claim falsely, she can suffer serious damages if she is sued, https://www.lexology.com/library/detail.aspx?g=13f9814f-b56e-4314-8e1b-95215ce60a6d. (And I am not saying she did allege a copyright violation. That's the whole point. I'm trying to find out if anyone knows for sure that Amazon removed a book that was reported for violating a trademark, and if so, why, as trademarks aren't covered under DMCA).


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Offline Becca Mills

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I don't think she agrees because she just posted on 20BooksTo50K about how she had to do it because apparently her readers couldn't tell her books from other books with the word "cocky" in the title (insert eyeroll) and also because everyone was copying her.

Mimicry does happen, and I'm sure it's annoying. I just ran a search, and some books came up that use the word and clearly echo her branding. I imagine many of us would find that sort of search piggybacking frustrating.

But it seems to me Rick G. hit on a great balance: if you're concerned about it, trademark your series name and the branded appearance of it on your books, and go after people who try to use your series name and branding. Don't worry so much about titles; trust readers to be able to differentiate your books from others' based on series name, branding, author name, and that je ne sais quoi that makes your books special. That way, you discourage real efforts to piggyback on your success without unduly burdening people who don't intend to take advantage of you.

What she's doing seems to cast a much wider net than that. It might catch all kinds of authors -- people who've never heard of her books, people who don't have significantly overlapping readerships, people who use the word "cocky" but not in the formula her titles use, etc.

Online C. Gockel

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I just want to say, I think that SERIES names fall under copyright if you're dealing with the same genre. I don't think you even have to apply, technically.


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Online SummerNights

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I just want to say, I think that SERIES names fall under copyright if you're dealing with the same genre. I don't think you even have to apply, technically.

Copyright and trademark are two different things. The way I understand it, series names cannot be copyrighted but they can be trademarked when there is sufficient evidence that they have created a branding that could be diluted if others use the same name. That's fine and it makes sense. Trademarking a single, common word is totally different and sets a dangerous precedent.

Offline Becca Mills

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Let's keep the focus on the trademark issue, folks.

Online idontknowyet

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If youre trademark a series name for example  the twilight saga. You would trademark the entire phrase the twilight saga not just the word twilight. Titles of books cant be trademark only series. How can you only trademark one word in your series name? So an author by that measure could trademark the word saga and no other authors could write a saga.


corrected trademark/copyright
« Last Edit: May 04, 2018, 06:19:12 PM by idontknowyet »

Offline Crystal_

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If youre copywriting a series name for example  the twilight saga. You would copyright the entire phrase the twilight saga not just the word twilight. Titles of books cant be copyright only series. How can you only copyright one word in your series name? So an author by that measure could copyright the word saga and no other authors could write a saga.

It's a trademark, not a copyright.

You can trademark single words, but they're usually very specific, i.e. Apple applies to computer companies, but not bakeries. If I want to open an Apple Bakery, I'm probably fine. If I want to open Apple Computer Repair, I'm probably not. IANAL, but that is my understanding.

Offline Betsy the Quilter

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It's a trademark, not a copyright.

You can trademark single words, but they're usually very specific, i.e. Apple applies to computer companies, but not bakeries. If I want to open an Apple Bakery, I'm probably fine. If I want to open Apple Computer Repair, I'm probably not. IANAL, but that is my understanding.

And then there's this...
https://www.washingtonpost.com/archive/lifestyle/1990/10/24/sex-and-the-bomber/8fad9052-40f8-4ffd-a789-949a4f22368d/
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Online SummerNights

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It's official:

Authors who have been threatened with legal action by [not sure if it's allowed to mention the author's name] can contact Carol Ritter (carol.ritter@rwa.org) as the RWA is now collecting info to talk to an IP lawyer.

Online Jena H

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It appears that an author has trademarked the mark "cocky" for "A series of books in the field of romance" and "A series of downloadable e-books in the field of romance."

....


If I'm not reading the filing info incorrectly (which is easily possible) it looks like this person registered the TM with the help of a high-powered lawyer.  In fact, the  author's "business name" is using the lawyer's Park Ave (NYC) office as "owner address."  So it doesn't sound like this is an action taken by a simple writer from Anytown, USA.  Even with the help of cousin Wally, who's in his first year of law school.
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Online guerin

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If youre trademark a series name for example  the twilight saga. You would trademark the entire phrase the twilight saga not just the word twilight. Titles of books cant be trademark only series. How can you only trademark one word in your series name? So an author by that measure could trademark the word saga and no other authors could write a saga.


corrected trademark/copyright

They trademarked the word Twilight and not the series name. I guess Saga was already taken  :)

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Online Usedtoposthere

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I hope she has deep pockets. I have a feeling she's going to need them.

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Online David VanDyke

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If this author is using the TM to protect her work, I'm all for that. If she's using it to unjustly intimidate other authors, I'm against it, and I think the courts will be as well.

Good law is not founded on the intentions of those with power. Intentions change. Good law is made on limiting power to its appropriate expression, not depending on good intentions.

Give someone the power to crush competition with a simple DMCA (or whatever the TM equivalent is) notice, and they become more likely to use it. If one person gains that power and it's upheld, there will be a rush to do the same--and there will be many who don't resist the temptation to do so.
« Last Edit: May 04, 2018, 06:45:30 PM by David VanDyke »


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Online David VanDyke

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I don't think she agrees because she just posted on 20BooksTo50K about how she had to do it because apparently her readers couldn't tell her books from other books with the word "cocky" in the title (insert eyeroll) and also because everyone was copying her.

Yeah, I'm sure the author of the first Billionaire romance feels the same way, and the first author who wrote a "space marine" story, but sometimes the cure is worse than the disease.


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