So…THAT Happened…

WARNING!

Kindly refrain from eating, drinking, smoking or otherwise engaging in any behavior which may precipitate a choking, cardiac or stroke hazard while reading this post. Management will not be responsible for any injury, death or near-death experiences or events caused by your viewing of same.

This is going to be a long post, but it’s one that needs to be written.

While I was spending a well-deserved, most enjoyable and richly earned weekend away in Forks and the surrounding chunk of northwest Washington, the romance world was busily turning its attention–and its unified wrath–on one relatively unknown author. (Spoiler: No, it’s not me!)

So, here’s the TL;DR version of how this allegedly went down.

NOTE: Everything which follows is a matter of fact, public record and/or open knowledge and discussion on social media. All allegations are ONLY allegations until and unless proven by a competent court and trier of fact.

  • Relatively unknown author Faleena Hopkins apparently decided she should have sole rights to the word “cocky” and filed to trademark the basic word and the word in a specific font, aka a “wordmark” (think the Coca-Cola logo, etc. to visualize this) in September of 2017.
  • The US Patent and Trademark Office apparently lets people trademark anything these days and approved both trademarks under Trademark Registration Number 5447836. It seems the prevailing default practice is to approve the filing and then let litigants fight it out in court if there are shenanigans afoot. In this case, methinks the shenanigans upgraded to SI, because there’s at least a meter of WTF going down here, in my admittedly not at all humble opinion.
  • Relatively unknown author then allegedly starts quietly sending demand letters to other (lesser-known) authors whose works’ titles included the word “cocky,” many of which predate any of her own releases by a wide margin. Generous soul that she is, she wants these authors to change their titles to prevent dilution of her brand, but promises she won’t take any further action or sue them into oblivion if they, you know, completely change their branding, a not at all cheap or easy undertaking for the vast majority of authors. This, predictably, triggered allegations and bandying about of the word “bullying” as one of the milder descriptions for this behavior.
  • Word gets around. The romance community is simply not that big, and is fairly tight-knit. I largely lurk on the periphery of it these days, but I know who the major players in the top three tiers are by name if not by sight and keep my ear to the ground. Almost NO ONE I know had ever heard of Hopkins before this weekend. Both of my girls, inveterate romance readers, blinked at me and said, “WHO?” when I first told them about this. But boy howdy do they know her name now….and they are NOT favorably impressed.
  • The romance community lost its collective shit.

    • The Romance Writers of America (RWA), an organization which is notoriously shy about engaging with any situation which bears the slightest taint of controversy, has put out an open call for authors, MEMBERS OR OTHERWISE, who have been targeted by Hopkins to contact Carol Ritter (carol.ritter@rwa.org) so she can gather information for an intellectual property attorney to consider legal action. To say this move is unusual from RWA is, at the very least, a grotesque understatement.
    • Bianca Sommerland, with whom I once shared anthology space in the salad days of Noble Romance Publishing, posted a ~20-minute YouTube video about the debacle.
    • Courtney L. Rose created a MoveOn.org petition calling for USPTO to revoke the trademark.
    • Laura Antoniou, who wrote the BDSM-themed series The Marketplace, had some scathing commentary for Hopkins, but not nearly so much as Jenny Trout, whose thoroughly epic and uncensored thoughts on this shitshow merits acquiring popcorn before reading. And maybe a cigarette afterward, if you’re so inclined.
    • The Passive Voice, who once upon a time covered the implosion of the afore-mentioned Noble Romance Publishing, wrote up a very nice summary of the allegations and summed up the various potential legal problems with Hopkins’ stance in a rather neat little bow.
    • The Digital Reader also wrote about this situation, and the article is well worth a read in its entirety, but the picture leading the article says a mouthful on its own!
    • I cannot personally vouch for this as true or false for reasons which should already be obvious to long-time fans of mine, but even E.L. James (!!!!) is reported to have weighed in, throwing serious shade in Hopkins’ direction. Take a moment to ponder on THAT. And I really, seriously hope you heeded my warning at the top of this post!
    • The creator of the font Hopkins used for her wordmark has apparently stated that Hopkins is in breach of the terms and conditions of use of that font, and that he is considering legal action as well.

So, there’s plenty of reading material above for you to examine this case for yourself and form your own conclusions.

Now, my take on the whole thing.

Let me start by saying if there’s a shred of truth in any of this, it is the ultimate dick move, and anyone trying to pull it off has balls of a size suited to rolling down caverns after Indiana Jones.

It has long been a tenet of intellectual property law as I am given to understand it (I AM NOT A LAWYER!!!!) that one cannot copyright or trademark a common word, unless it is used and intended in a very specific context.

In the previous paragraph, I used the name of the titular character of a very famous film franchise. Because this is a pop culture reference and I am not trying to assert ownership over the name, nor use it for my own personal profit, I can use it here without fear of reprisal. While one can do so in a limited sense as long as the usage is narrowly defined, i.e. for an overarching series title such as The Marketplace, such a trademark or copyright would ONLY cover a series with an identical name, not a book with an identical title. This is because “marketplace” is a common word in common usage; but if I were to use The Marketplace as the title of a series, this action most certainly would dilute Laura Antoniou’s brand and she could rightly sue me into my component atoms!

Likewise, Fantastic Dominants and Where to Find Them is an obvious riff on a J.K. Rowling title, but is disambiguated and separate enough in the cover matter, font, presentation and other particulars to create no association of any kind with Rowling’s characters or ouvre. And let’s not even get me started on Fifty Shades of ABSOLUTELY EVERY FUCKING THING which has proliferated in the past decade or so…

There is also the matter of “first to use,” not “first to file.” In the US, first to use typically wins. Thus, any author using a specific word or series of words in a specific order de facto has the ultimate right to determine what is and is not infringement, placing Hopkins on an extremely tenuous footing right from jump.

I have used the letter “i” in its lowercase form a number of times in this post. I can do this because no one owns 1/26th of the English alphabet! However, if I decided to build a phone, call it an iPhone and sell it, Apple would be sending me a cease and desist order before I finished putting the screen protector on!

Likewise, one cannot trademark a proper name unless it is limited to a very specific application and usage. Thus, I can use the moniker Unicron within the kink space, so long as I do not:

  • Claim affiliation with Hasbro, Paramount or any other company which is involved in the Transformers cartoon, toy or movie franchises. (I don’t.)
  • Claim myself to be a planet-devouring transformable robot. (I don’t, but I most certainly can and will fuck up the worlds of people who cross my House or my girls!) While I may occasionally post a meme of their version of Unicron doing Unicron shit, namely destroying planets, on social media, this is intended and widely understood as an act of fan homage, not an attempt to claim ownership or otherwise profit from the name or character of Unicron as portrayed by the previously-mentioned entities.
  • Create an action figure or toy of myself with the name Unicron, especially if said action figure or toy is a transforming robot. (Even my vainglory and arrogance have limits!)
  • Make any statement or take any action which may dilute Hasbro’s brand and trademark rights in any way or create in the mind of a reasonable viewer any association or claim of affiliation betwixt and between myself and Hasbro et al, which is not particularly difficult given that I don’t play in any space where such may be an issue. The kink scene’s version of toys and the type of toys children play with are generally spaced widely enough away from each other that this is not a factor.
  • Attempt to profit in any way from the usages of Unicron which are covered by the previously-mentioned parties’ intellectual property rights. To the best of my knowledge and belief, I have not, and in fact take great pains to ensure clarity that while, yes, this moniker was inspired by the Big Bad of the Transformers universe, my usages deviate substantially enough from theirs so as to constitute no infringement upon their rights of which I am aware.

Based on these accepted usages of intellectual property law, and given the fact that to date no well-known authors have come forward with similar allegations against Hopkins, what we have here appears to be a very troubling but increasingly common phenomenon of misuse of the law to suppress competition.

  1. Hopkins allegedly obtained trademarks to which she was not rightfully entitled, and/or which were wrongfully portrayed in scope and intended use.
  2. She then allegedly used the mere fact of the existence of these trademarks to bully lesser-known authors who lacked the time, energy or resources to fight her in open court out of using their own (fairly generic) titles, in order to control the space in which these titles were used, namely the romance genre.
  3. These allegations in turn prompted a wave of public sentiment against her, provoking the ire of her fellow authors and causing many readers to place her on their “Never buy” lists.
  4. She promptly took to social media to portray herself as a martyr, a picked-on, put-upon David being “bullied” by the romance community for the sin of protecting her own brand.

Here’s the problem.

The romance community DOES NOT take to this sort of shit kindly.

We didn’t put up with it back in 2011-2012, when PayPal decided they didn’t want account holders using their PayPal funds to purchase adult material of any kind. The entire reading and writing erotic romance community clapped back hard enough on that one to send PayPal packing.

We’re not putting up with SESTA/FOSTA and the CLOUD Act, both of which target sex workers and undermine basic civil liberties. (Guess what! If you write erotic romance, you’re a sex worker!)

And we’re certainly not going to put up with someone pulling this sort of shenanigans, for four reasons.

  1. We as a community recognize any attempt to stifle or silence other authors degrades our own freedom of speech. So long as the author is working within accepted community standards (i.e. no copyright infringement, no underage sex, no bestiality, no rape, no necrophilia, etc.) they and their work can sink or swim on their own merits as decreed by the reading market.
  2. We as a community recognize words are our stock in trade, and shenanigans like this threaten our ability to write what we wish. No one wants to have to check a list of proscribed words every time they sit down to write a story, and it’s gruesomely unfair practice to try to game the system and suppress healthy competition this way.
  3. We as a community get enough grief about daring to write openly and frankly about sex as an integral part of human romantic relationships, including kink, BDSM, fellatio/cunnilingus/analingus and anything beyond “missionary with the lights out on Saturday night behind closed doors and under the covers.” We don’t need or want people playing in this space who are going to give us MORE hassles to deal with or offering the publishing world less reason to consider the romance and erotic romance spaces as possessing literary and artistic merit in their own right.
  4. Nobody likes an asshole. Bad behavior is not rewarded in this community, and we tend to get the word out tout de suite when someone shows their ass. Likewise, we don’t suffer fools in our ranks gladly or for long.

At the very minimum, this smacks of extremely poor judgment if ANY of the allegations are true in ANY particular.

At the most, this is a perfect example of how to commit career seppuku and ostracize yourself almost instantly from the writing community.

Either way, it’s going to be goddamn entertaining to watch.

Excuse me…I need to go make some more popcorn.

A final note: Let me say, ONCE AGAIN, that all allegations against the party in question are exactly that until and unless proven to be factual.

Edit 12:36pm 7 May 2018: Apparently, retired IP attorney Kevin Kneupper, an author as well, has come out of retirement to file a petition with USPTO challenging Hopkins’ trademarks. Also, #byefaleena and #cockygate are trending on Twitter. More edits will be posted as new information becomes available.

Edit 13:59pm 8 May 2018: The Guardian has done a write-up on #cockygate. I have written an article and pitched it to a local news outlet as well. More details to follow!

3 thoughts on “So…THAT Happened…

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