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Author Topic: Trademark, series, titles, and...yeah...lawsuits (Cockygate & ordinary-word TMs)  (Read 72456 times)  

Online TimothyEllis

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in one century there won't be words left. No words.
It wont take that long. Less than 10 years.
And if the first dozen or so all succeed, it might only take a year.

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"Planet Express" is the name of the delivery company on Futurama, so that ship has sailed (pun intended).

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Offline Puddleduck

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Since people are talking about issues that I totally agree the trademark office should be considering (freedom of speech, books being different than other things), I guess I'll post the full e-mail I sent to the trademark office with their response. The address I used was: TMFeedback@uspto.gov

My original e-mail (admittedly, I probably didn't express myself as well as I should have, probably because when something is blatantly obvious to me, it's difficult for me to figure out how to explain it, sort of like how it's difficult to explain why drowning cats is a bad thing to do):

I'm sure you're aware of what is being called "cockygate" online, regarding the successful trademarking of the word "cocky" for use in books and the way that the woman who now owns the trademark has been using it to try to attack other authors.

As an author, though none of my book titles have the word "cocky" in them, this is of great concern to me. From what I've been hearing, there's been an increase in single-word trademark applications related to books recently, in response to the success
 this woman had in trademarking "cocky". My concern is not limited to this one specific trademark, which is why I wanted to send a general comment, as opposed to a specific challenge to that one trademark.

My concern is that, now that precedent has been set, we will see every big publisher, agent, and trademark squatter now try to trademark (for books) every word and common phrase in the English language, starting with those that are common key words in
 popular genre. Words such as "vampire", "kiss", "sexy", "time", "space", etc. etc.

While I understand that trademarks are useful in protecting a brand, when it comes to the book industry, there is a significant problem with trademarking any single words or common phrases. Books are made of words. As writers, words are our livelihood. Allowing trademarks for single words and common phrases for use in books makes as much sense as allowing a tech company to trademark a number. It becomes a weapon used to stifle competitors when no
 actual infringement on the brand is intended or in fact happening. Today, it's the word "cocky" that authors can no longer use in their titles. If this continues, how many more words will be verboten? Ultimately, it's a free speech issue. How can our freedom of speech not be curtailed by government-approved sanction of writers using actual words and common phrases that exist in our language?

As an American citizen and a writer, I urge you to please reconsider your policy when it comes to trademarks for single real words and common phrases for book-related trademarks. If this means that there need to be changes in the rules/statutes governing
 how you process such applications, please consider this a request to consider such changes at the next available opportunity to make them.


And here's their response:

Thank you for your feedback. Please note at the outset that we do not comment on the validity of any registered mark.

First, to clarify, a specific statute (The Trademark Act of 1946 ("The Lanham Act")) defines what a trademark is and governs the registration of such, setting out the specific prescriptions when any proposed mark is NOT registrable. For example, a mark is not registrable if it is confusingly similar to a registered mark when used on or in connection with related goods/services or if the proposed mark is merely descriptive.

A trademark is defined as follows: "Any word, symbol, or design, or any combination of those, that serve to distinguish the goods of one company from the goods of another company."

And specific to books, please note the title of a single work (a "book") is not registrable---there must be a series of books.

There is no prescription within that definition against common words. In fact, a very common word in our language---APPLE---is now considered to be the second strongest trademark in the world. How is that possible? Because the relationship between the word and the actual product is totally arbitrary---and arbitrary marks are considered to be equally as strong as fanciful marks (such as XEROX and KODAK).

What you are asking for is that an exception be carved out for books. This would require a statutory amendment, which you seem to acknowledge in your email. However, it is not clear what the basis of the refusal would be. For example, unless the word is truly descriptive of the subject matter of the series of books (rather than merely suggestive, which is permissible), what would be the ground for refusal?

Your actual point seems to be that you are upset that someone has attempted to use a registration in a manner that you do not believe is appropriate. That is actually a different issue than whether the USPTO should grant registration for a title that covers a series of books. We have absolutely no control over how a party decides to assert trademark rights. Some registrants are aggressive, others are not. But that does not direct what is or is not registrable as a matter of law.

And please note that there is no such thing as a "trademark squatter." To be eligible for registration, you must be able to submit actual evidence of use on a series of books---you may not simply try to "tie up" a word that you are not actually using in an attempt to then go after other users who may be using this wording.

It is not clear why there is a specific problem related to books, as the issue is no different than in any other field. While you say "Allowing trademarks for single words and common phrases for use in books makes as much sense as allowing a tech company to trademark a number," the reality is that is absolutely permissible under trademark law, unless it is shown that the number is actually being used as a grade or model designation rather than as a source-identifier. If the number is arbitrary, it is registrable (e.g., "409" is registered for "all-purpose cleaner"). So circling back to your examples, some of those clearly ARE descriptive, since we assume they indicate the subject matter of the books (vampire, space). Others listed there MAY be more suggestive (but we are not giving any sort of actual legal opinion thereon).

Please also note that trademarks have never been considered a "free speech" issue. If you are using a mark that infringes the rights of another, a satisfactory defense can never be that "free speech" allows you to use that wording. But again, we must emphasize that the role of the USPTO is to determine whether any proposed mark is eligible, under the terms of our statute, for registration. What any party does in terms of attempts to enforce registration rights is ultimately determined by a court. The mere "assertion" of rights is not determinative (i.e., merely sending a cease-and-desist letter does not, in and of itself, establish that any party must change a trademark).

We do appreciate your weighing in on the issue and understand your concerns. We hope that the above clarifies the USPTO role.

Sincerely,

TMFeedback Support Team
« Last Edit: June 14, 2018, 05:54:36 AM by Puddleduck »

Online Rick Gualtieri

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I would think that some of these are already trademarked.  Or at least prior use is too well-known.   ::)

Check out the owners of some of these, they're legit.  i.e.  Legends of Tomorrow lists DC Comics.  So this probably just means they're moving the property to print.


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Translation:

"We know the rules are a [weenie] and that [weenies] are trying to exploit them to be utter [weenies] to people who are just minding their own business, but we're going to help them, because LAW and because we'll charge you through the nose."

My faith that there is good in humanity was pretty low, but this does it.


Edited. Drop me a PM if you have any questions. - Becca

Online Rick Gualtieri

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Translation:

"We know the rules are a [weenie] and that [weenies] are trying to exploit them to be utter [weenies] to people who are just minding their own business, but we're going to help them, because LAW and because we'll charge you through the nose."

My faith that there is good in humanity was pretty low, but this does it.


Edited. Drop me a PM if you have any questions. - Becca

The USPTO is traditionally understaffed and underfunded. They're just doing their job.  Don't blame them.  Blame the lawmakers who have refused to consider trademark and patent reform.

Oh, and definitely blame the authors who are using this as a pathetic land grab to stifle competition.  No system is perfect, but some people are always looking for loopholes to exploit. 
« Last Edit: June 14, 2018, 01:05:29 PM by Becca Mills »


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Offline Puddleduck

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Translation:

"We know the rules are a [weenie] and that [weenies] are trying to exploit them to be utter [weenies] to people who are just minding their own business, but we're going to help them, because LAW and because we'll charge you through the nose."

My faith that there is good in humanity was pretty low, but this does it.


Edited. Drop me a PM if you have any questions. - Becca

I really get the feeling that this will have to be challenged in the Supreme Court as a freedom of speech issue before we'll see any real protection/change. And things will get much, much worse between now and then. (I hope I'm wrong.)
« Last Edit: June 14, 2018, 01:06:30 PM by Becca Mills »

Online Patty Jansen

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The USPTO is traditionally understaffed and underfunded. They're just doing their job.  Don't blame them.  Blame the lawmakers who have refused to consider trademark and patent reform.

Oh, and definitely blame the authors who are using this as a pathetic land grab to stifle competition.  No system is perfect, but some people are always looking for loopholes to exploit. 

Well, then, that infuriates me even more.



Edited.  PM me if you have any questions.  --Betsy/KB Mod

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I really get the feeling that this will have to be challenged in the Supreme Court as a freedom of speech issue before we'll see any real protection/change. And things will get much, much worse between now and then. (I hope I'm wrong.)

I actually suspect that we'll see a flurry of ridiculous registrations, some C&Ds and an odd court case, but soon enough these [several derogatory terms deleted] people will realise that trademarks don't make money. They only cost [crap]loads of money. And legal cases take [crap]loads of time and cost mental energy and anguish. And while they're doing all that rubbish, they're not doing the one thing that keeps bringing in the money: writing and managing their author business. Sure, some people do well, but the ones who both do exceedingly well and are willing to do all this ridiculous stuff and keep selling well will be few and far in between. Most writers I know who do well actually want to keep writing.

A few of these peeps may torpedo their own business by becoming overly focused on defending their trademark. Once everyone realises it costs them [crap]loads of money, they'll slink off into a corner and think of the next scheme or fad.

Offline Puddleduck

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The USPTO is traditionally understaffed and underfunded. They're just doing their job.  Don't blame them.  Blame the lawmakers who have refused to consider trademark and patent reform.

We can blame the lawmakers while also being irritated that the trademark office doesn't even comprehend why we see this as a problem. If they did, we might get some push from them on their side of things to clean this up. I don't know how things work at the federal level, but I work for state government, and every couple years when the state congress is in session, the high-ups in our department go, "What are the biggest problems that we can take to the lawmakers to try to get the laws changed to correct?" I find it hard to believe the people in charge of trademarks don't have anything remotely similar. There are changes in law that happen without voters getting involved or supreme court lawsuits being needed.

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Some free speech advocate with deep enough pockets, eventually, will fight it in Federal court. And they will probably win.

Many, if not most of the Cockybot TM apps I've seen are quite generic.

Some of the TMs seem a bit broad. Faleena's is limited to a series of romance books. But some of the other ones I've seen cover any books, any eBooks, any published material. Now whether some regulation trumps that, I wouldn't know. But these descriptions are on the documents, and some of them have gotten approved that way. Scary.
« Last Edit: June 14, 2018, 11:21:37 AM by jb1111 »

Offline Day Leitao

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What you are asking for is that an exception be carved out for books. This would require a statutory amendment, which you seem to acknowledge in your email. However, it is not clear what the basis of the refusal would be. For example, unless the word is truly descriptive of the subject matter of the series of books (rather than merely suggestive, which is permissible), what would be the ground for refusal?



TMFeedback Support Team[/i]

I think that's the point. The issue is how to achieve an amendment.

The justification would be that, for books, all words are descriptive, especially adjectives. Other words can be descriptive as well, and relate to the content of the book.

Another justification would be based on the number of words vs. potential number of TMs if this is allowed, considering the amount of authors and books, and the facts that titles are made of words.


Offline kw3000

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Unfaith in humanity restored.

The trademark office's response is eye-opening. They've essentially thrown up their hands and said let the lawyers sort it out. Amazing.

Self-publishing seems headed for dystopia with lightning speed. Perhaps I should find something else to do.

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Offline David VanDyke

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A few of these peeps may torpedo their own business by becoming overly focused on defending their trademark. Once everyone realises it costs them [crap]loads of money, they'll slink off into a corner and think of the next scheme or fad.


I wish that were true, but people often aren't rational and business-oriented, especially about things close to their heart i.e, things they've created. Authors are people and so they fall into this camp. They often spend a lot of time and energy on diversions that don't forward their career, their sales or their craft. So, I don't think we can depend on rational thinking to solve the problem. People use the legal system against each other all the time with the sole goal of hurting someone who's offended them, rather than protecting their business.


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Offline Betsy the Quilter

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Folks, I'm going to read through, but there seems to be a bit of politics creeping in here.  Let's keep away from that, OK?  Posts may be edited...

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Offline Bards and Sages (Julie)

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Actually, he DID answer the question. He explicitly said that a single book title cannot be trademarked. Only the SERIES.

So if she wants to call her SERIES the Cocky SERIES, that is fine. But that SERIES has nothing to do with individual TITLES. It would only be triggered if someone tried to create a SERIES with the word cocky in the name. The issue in this case is not the mark itself. The issue is that she is attempting to use the SERIES mark to stop INDIVIDUAL TITLES.

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Wow, Puddleduck ... I'm impressed with both your letter and with the USPTO's response. That response is what it looks like when an actual person thinks about and answers a complex customer-service complaint. The difference between that and the kinds of responses we get from KDP is pretty glaring, isn't it?  :(

That said, I think the person who responded to you is incorrect. IANAL, but speaking as an individual reader, I don't think "cocky" is arbitrary vis-a-vis Hopkins's books in the way "apple" is arbitrary vis-a-vis computers. I read the first in Hopkins's series -- not really my genre, but I wanted to know what her books were like -- and "cocky" seems to me to describe the character of the hero very specifically. He's a hot, successful guy who knows he's hot and successful, knows he has no difficulty attracting women, and wears that seemingly unassailable confidence (which the heroine eventually shakes, of course) on his sleeve. He's definitely cocky. "Proud" and "arrogant" would be too strong, as he's nice and doesn't take himself that seriously. "Cocky" is pretty much the perfect descriptor for him. Also, near the beginning of the book, he exposes himself to the heroine for some minutes. There's extended discussion of his ahem between the the two characters and in the narration. The obvious naughty pun contained within "cocky" makes the word doubly not arbitrary. So the book is quite clearly about a cocky guy -- cocky in terms of external show of confidence, and cocky in terms of his focus on that part of his own body. As a reader, I felt like these were two of the character's outstanding features. The word seems to me so very, very not arbitrary. It'd be more like Apple had named itself "Digital" and tried to trademark that. I have trouble seeing how the USTPO doesn't realize that the word "cocky" describes a key personality trait of the kind of unassailably confident, highly sexual alpha-male hero Hopkins created in that book, which many other romances also create -- the character type is common in the genre.

Moreover, the larger issue you raise, which may be beyond the scope of the USTPO to deal with, seems very important to me: Words aren't just marketable brand symbols, when it comes to books. I mean, books are made of words in the way 409 is made of ammonia and other stuff, and Apple devices are made of silicon and so forth. Words are books' very substance. When you trademark a word in books, it's like making a particular chemical unavailable for formulating all future cleaning fluids, or making a particular mineral unavailable for constructing all future laptops. Therefore, the bar should be higher when it comes to trademarking words in the area of books, IMO. There needs to be some recognition that books are 100% made of potentially trademarkable symbols in ways other products aren't, and that  more care should thus be taken before book-related trademarks are granted.
« Last Edit: June 14, 2018, 11:55:12 AM by Becca Mills »

Online jb1111

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What the TM office said is hopeful. I did a search and found this:
https://www.bitlaw.com/source/tmep/1202_08.html

One thing it mentions:
"The title, or a portion of a title, of a single creative work must be refused registration under 1, 2, and 45 of the Trademark Act, 15 U.S.C. 1051, 1052, and 1127, unless the title has been used on a series of creative works."

It goes on a bit further about single book titles not being eligible for TMs.

Which makes me wonder if someone could use the word "cocky" in a book title if it's not claiming to be in a "cocky" series?




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What the TM office said is hopeful. I did a search and found this:
https://www.bitlaw.com/source/tmep/1202_08.html

One thing it mentions:
"The title, or a portion of a title, of a single creative work must be refused registration under 1, 2, and 45 of the Trademark Act, 15 U.S.C. 1051, 1052, and 1127, unless the title has been used on a series of creative works."

It goes on a bit further about single book titles not being eligible for TMs.

Which makes me wonder if someone could use the word "cocky" in a book title if it's not claiming to be in a "cocky" series?

Of course it can be. The problem is that the trademark holder is using/has used DMCA and C&D notices to *claim* infringement. It doesn't matter to a lot of people (Amazon) if that infringement is genuine. Amazon just does its thing and takes down books, whether the claim has merit or not. (And just because it has stopped doing that for "cocky" doesn't meant its not still doing/won't do that for other stuff.)

That's the problem I've recognized from all this. I think a lot of people see the issue.

Claims can be complete [bullcrap], but that doesn't matter at all if the result is the same as if the claim was 100% valid.

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Actually, he DID answer the question. He explicitly said that a single book title cannot be trademarked. Only the SERIES.

So if she wants to call her SERIES the Cocky SERIES, that is fine. But that SERIES has nothing to do with individual TITLES. It would only be triggered if someone tried to create a SERIES with the word cocky in the name. The issue in this case is not the mark itself. The issue is that she is attempting to use the SERIES mark to stop INDIVIDUAL TITLES.

I'm not sure the above is true, Julie. I think that if you title an individual book in such a way that someone might arguably misperceive it as being part of the trademarked series, the trademark holder might sue you. If I published a standalone book and titled it Star Wars, I have a feeling I'd hear from Disney, and the fact that I didn't use "Star Wars" as a series title won't make a wit of difference to them. Maybe they'd lose in court -- I don't know. But even if I won, I'd have to spend a lot of money getting there. We can see that happening now with the Cocktales anthology. There's no series title in play with that book, but Hopkins is still arguing that there's infringement.

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Moreover, the larger issue you raise, which may be beyond the scope of the USTPO to deal with, seems very important to me: Words aren't just marketable brand symbols, when it comes to books. I mean, books are made of words in the way 409 is made of ammonia and other stuff, and Apple devices are made of silicon and so forth. Words are books' very substance. When you trademark a word in books, it's like making a particular chemical unavailable for formulating all future cleaning fluids, or making a particular mineral unavailable for constructing all future laptops. Therefore, the bar should be higher when it comes to trademarking words in the area of books, IMO. There needs to be some recognition that books are 100% made of potentially trademarkable symbols in ways other products aren't, and that  more care should thus be taken before book-related trademarks are granted.

Exactly. This is the key point the USTPO needs to understand. It is abhorrent to grant one glass maker a trademark on sand and telling all other glass makers if they have a problem with it to lawyer up. Do they not realize the damage and chaos this will cause or do they just not care because 'not my department'?

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Actually, he DID answer the question. He explicitly said that a single book title cannot be trademarked. Only the SERIES.

So if she wants to call her SERIES the Cocky SERIES, that is fine. But that SERIES has nothing to do with individual TITLES. It would only be triggered if someone tried to create a SERIES with the word cocky in the name. The issue in this case is not the mark itself. The issue is that she is attempting to use the SERIES mark to stop INDIVIDUAL TITLES.
This is pretty much what I understand as well. That being said, the other trademarks being filed, I assume, are for series names (like Warrior Cats, which is an awesome series btw). So doesn't that make it self-explanatory? Given what the trademark office wrote in their letter, isn't it then not within the scope of the trademark to sue authors with those words in their titles? How can she, or any other author, pursue royalties for titles when the trademark only applies to the series? The answer seems pretty straightforward and legit then.

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Offline Rose Andrews

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I'm not sure the above is true, Julie. I think that if you title an individual book in such a way that someone might arguably misperceive it as being part of the trademarked series, the trademark holder might sue you. If I published a standalone book and titled it Star Wars, I have a feeling I'd hear from Disney, and the fact that I didn't use "Star Wars" as a series title won't make a wit of difference to them. Maybe they'd lose in court -- I don't know. But even if I won, I'd have to spend a lot of money getting there. We can see that happening now with the Cocktales anthology. There's no series title in play with that book, but Hopkins is still arguing that there's infringement.
But wait a minute: a single title of cocky, without the series name attached to it, and a different author name, is enough to clarify to readers that it is not part of the same series. The response makes sense to me. If another author were to title their book Cocky X AND attach Cocky Series bla bla bla...then that would be a violation of her trademark. A single title is not that.

Taking Apple as an example: if another company that sells electronics/digital widgets were to come along and COMPETE in the same marketplace with the name Apple, that would be a violation of Apple's trademark.

**The whole point about not allowing single title trademarks is to allow freedom for other authors to compete. Trademarking a single word used to describe a TROPE is preventing other authors from fairly competing in the erotic romance category marketplace. Isn't that business law 101 right there? The whole thing about monopolies?**

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Exactly. This is the key point the USTPO needs to understand. It is abhorrent to grant one glass maker a trademark on sand and telling all other glass makers if they have a problem with it to lawyer up. Do they not realize the damage and chaos this will cause or do they just not care because 'not my department'?

I think words are weird. They're both concrete entities in their own right and symbols intended point to other entities without calling attention to themselves. Sometimes those two facets come into conflict in strange ways. I suspect lawmakers and the folks at the USPTO just haven't thought through the weirdness. It's a little too Derrida for the real world, you know?