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This is one of the important stories that I haven't had time to blog about over the past couple of months. Let's start with some of the more tasteful jokes, nicely presented using the rhetorical device of praeteritio — Constance Grady, "How an author trademarking the word “cocky” turned the romance novel industry inside out", Vox 5/15/2018:

Gentle reader: Before we delve into the long tale that lies ahead — a tale of hubris, furious romance novelists, and intellectual property law — I ask you to take a moment to contemplate all of the “cocky” puns to which I, your humble reporter, have heroically chosen not to subject you.

I will not snidely remark that someone’s feeling cocky. I will not call this a cocky-and-bull story. I will not lament that the whole thing was started by someone going off half-cockyed.

This is a sacrifice, and I have made it. Thank you for bearing with me. Now let’s get into it: This is the story of #CockyGate.

For the substance, read the rest of that article, or see the Electronic Frontier Foundation's take in "Author Trademarks the Word 'Cocky,' Earns the Ire of Romance Writers Everywhere", 5/5/2018. Or Kayleigh Donaldson, "Cocky Writer: Romance Author Faleena Hopkins Trademarks 'Cocky' and Tries to Shut Down Others Using the Word", Pajiba 5/7/2018; or Alison Flood, "Romantic novelist's trademarking of word 'cocky' sparks outcry", The Guardian 5/8/2018; or Cory Doctorow, "'Cocky' romance novelist embarks on a second career as a trademark troll: will romance writing fall from grace?", boingboing 5/9/2018; or Steven Poole, "'Cocky': romance writers are weak at the knees for a double-entendre", The Guardian 5/11/2018; or Tyler King, "Who Owns Cocky? A trademark war roils the romance world", Slate 5/15/2018; or the many thousands of #cockygate tweets.

Or any of the rest of the extensive coverage, which so far doesn't include anything in the New York Times or the Washington Post. Perhaps those publications will deign to take notice now that the issue is in court — see e.g. Rachel Tsoumbakos,  "The Temporary Restraining Order For ‘Cocky’ Trademark Author Goes To Court", Inquisitr 6/1/2018:

Ever since news dropped about the trademark of the single word “cocky,” the writing world has been watching the issue unfold via social media. Faleena Hopkins, a romance author with an extensive book series originally called The Cocker Brothers, had been granted a trademark for the term “Cocker Brothers” in relation to a romance series. Alongside this trademark, she also had two others issued for the word “cocky,” one in a stylized font, and one for use of the word itself, in any format, in use in romance titles that are a part of a series. […]

Since the story broke on May 4, it has been revealed that Faleena Hopkins has been sending out cease and desist letters to authors who have used the word “cocky” in their titles — both prior to, and after, she had commenced her Cocker Brothers series. As a result of this, the Romance Authors of America (RWA) have gotten involved, along with retired legal professional Kevin Kneupper. Kneupper is trying to have the trademark for the word “cocky” canceled.

Faleena Hopkins then issued legal proceedings in the form of a Temporary Restraining Order (TRO) against the following defendants: the author Tara Crescent for her usage of “cocky” in the title of two of her books; Jennifer Watson, who is a publicist involved with the Cocktales Anthology; and Kevin Kneupper. If this TRO was issued, it would mean that Tara Crescent would have to pull down her cocky books from sale and so too would the Cocktales Anthology.

On June 1, the legal proceedings commenced. Hopkins wasn’t present at the hearing, however, she was represented by Christopher S. Cardillo and Jonathan Pollack. The hearing was seen before a judge in the U.S. District Court for the Southern District of New York, and has been involved in several high-profile cases.

The Cocktales anthology is worth a special look — according to its amazon.com blurb,

'Cocktales' is a limited-release anthology (available *only* from May 26 – August 26, 2018) of original, never before published material, some of which is raw and unedited. Each story was specifically written for this anthology.

The goal of the Cocktales Anthology is to raise funds to fight against obstruction of creative expression. Specifically, what we believe are obstruction attempts through the trademarking of common (single) words for titular use in books / or as a book series (eBooks, print, and audio).

*ALL* net profits will be donated to:
1) Authors already impacted by creative-obstruction (10%), and
2) Romance Writers of America (RWA) (90%) as a general donation intended for their Advocacy Fund.

Available in paperback as well as e-book format, and copyrighted by Smartypants Romance™, Cocktales is 998 pages of text including composed-for-the-occasion stories by 40 authors. It seems to be selling rather well. The forward by Nana Malone, who was the first author to get a cease-and-desist letter, starts like this:

Tribes.

It’s a word that has always fascinated me. I think it’s because when I was a kid, my family moved around a lot and I never felt as if I had that group of folks who had the same shared experiences. I was always an outsider. A solo nomad.

In the last few weeks, that has all changed. Without much effort on my part, I found my tribe. I met a fabulous group of women— many of whom I honestly squealed about when I said their names aloud— who let me into their circle. I’m not sure how I got invited into this group (that’s a lie, I totally know and THANK YOU— you know who you are) but I am so grateful.

And now, my tribe had grown by leaps and bounds, all because of one word: Cocky.

So far in the court case (covered by Courtney Milan on twitter), the TRO has been dismissed (so that you can still buy Cocktales if you want to), and the judge has expressed some skepticism about the validity of the trademark: "It seems to me at this point of the record and given the way that these titles look to be more adjectives than indications of source, that we have a weak mark."

The trademark challenge belongs to the USPTO — there's a description of the legal issue here:

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.

Update —  in the comments, Porter Anderson points us to his article "Freedom to Publish Advocacy: Authors Guild Wins ‘CockyGate’ Court Ruling", Publishing Perspectives 6/1/2018:

The Authors Guild today (June 1) reports that it has won a court ruling that means writers can continue to sell books with titles that use the word cocky despite a trademark registration owned by author Faleena Hopkins for a romance book series titled “Cocky.”

The Authors Guild and the Romance Writers of America (RWA) worked together in this case of legal advocacy for writers, defending the principle that no one should be able to own exclusive rights to use a common word in book or book series titles.

In ruling against Hopkins—who had claimed exclusive rights to cocky for romance titles–Judge Alvin Hellerstein of the Southern District of New York, the guild tells Publishing Perspectives, stated that he did not believe that Hopkins was likely to succeed on the merits.

Earlier this year, news of Hopkins’ trademarking of the word sparked initial amusement and wise cracks, followed by growing consternation in the American author corps: ‘CockyGate,’ as it was called by writers, began to look quite serious. Not only were authors reportedly taking cocky out of  their titles out of fear of expensive litigation, but it was also said that another author was working to trademark the word forever. […]

In the early days of LLOG, Geoff Pullum satirized a less serious intellectual property claim to a common word: "Snugglebunny is mine", 5/18/2004.

Anderson continues

The interpretation of the legal team at the Authors Guild, which is led by executive director Mary Rasenberger, is that no one author should be able to prevent others from using a commonly-used word or phrase in book titles. The law, in the guild’s reading, is clear that an individual title cannot be trademarked—only series titles can—and that common words cannot be trademarked at all unless they develop an association in the minds of the public with a particular source, in this case a single author.

June 2, 2018 @ 5:47 am · Filed by Mark Liberman under Language and the law

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