In a decision handed down late last week, Judge Alvin Hellerstein of the Southern District of New York denied a motion by an author requesting that a preliminary injunction be issued to prevent publication a number of books that include the word “cocky” in the title.
This spring, author Faleena Hopkins obtained a trademark registration of the word “cocky” in connection with her series of self-published romance novels, each featuring one of her Cocker Brothers characters. Before filing suit, Hopkins sought to block the sale of other romance books that included "cocky" in their title, and sent letters to authors telling them to change the title of their books. Hopkins also asked Amazon to pull other books featuring "cocky" in their titles from sale.
Although Hopkins had obtained her trademark, the law only allows trademarks in limited cases. The law prevents individual titles from being trademarked, only series titles, and allows that common words cannot be trademarked at all, unless they develop an association in the minds of the public with a particular source.
Following Hopkins' letter-writing campaign and contact with Amazon, the Authors Guild and the Romance Writers Association separately requested that Amazon place the removed books back on sale. The Guild also hired a law firm to write a letter to Hopkins explaining its position on the issue. Hopkins’ response to the letter was to file her lawsuit.
In denying Hopkins’ motion for an injunction, Judge Hellerstein found that the injunction was unlikely to proceed on the merits, noting that “cocky” is a common word and a weak trademark.
In its motion seeking that the injunction be denied, the Guild said it opposed Hopkins’ action because: “Any order that restricts creative expression in favor of promoting the tenuous (at best) purported rights of a single author is simply contrary to the public interest in freedom of expression.”
