Cleaning Up the Cocky Cock-Up

NB: Please see updates below.

I’ve noticed as I age (like a fine wine, of course) that I experience different kinds of upset. Sometimes I feel flash-rage explosive, and sometimes I experience a more slow burn of never-ending sneer.

Then there’s the upset that’s a full-body exhale of impending exhaustion. Ever walk into a room and discovered that a toddler has made a mess that includes syrup, ink, and olive oil on a white rug, then watched as they upended a quart of spoiled milk on top? You can see the problem, and beneath it, the hours and hours that will be required to clean it all up.

That’s the feeling I’m experiencing right now, looking at the trademarking of the word “cocky.” Oh, look, that’s a massively ignorant mess and it’s going to take considerable time, energy, and funds to clean up. Yet here we are.

So what happened? As originally reported by Bianca Sommerland via YouTube, and written about extensively and exquisitely by Kayleigh Donaldson at Pajiba, Kevin Whipple, Jenny Trout, Courtney Milan, and many, many clever individuals on Twitter,  a self published author has trademarked the term “Cocky,” both the term itself and the word in a font to which said author does not own the rights. Said person has begun telling authors of works with “cocky” in the title or series name that they must remove or retitle their books immediately. Using said trademark, this person has also reported works from authors including Jamila Jasper, Nana Malone, and others to Amazon, which has removed them from retail sale.

TL;DR: Basic cocky trademark bullying.

Someone in the US Patent and Trademark Office made a big ol’ cock-up. They left ink, syrup, olive oil, and spoiled milk within reach of a toddler. And to be fair, the term “toddler” is giving way too much credit. Toddlers are great fun and are learning about the world. They can grow up to be great people.

This is an adult with what seem to be harmful, deceitful, and fraudulent intentions.

You’ll note I’m not using said author’s name. That’s deliberate. I didn’t want to write about this at all because it’s such an idiotic and immature ploy designed mostly to waste other people’s time. I didn’t want to contribute my energy or direct any eyeballs at the mess. And really, based on the excerpts shared by Sil Who Knows Pretty Much All the Things, this person’s books would not have been mentioned here any time soon, either.

Yeah.

To quote The Gospel According to Shade, Chapter Nene, Verse One: “Nobody was talking about her a few years ago. And so now, you know, I know this is a blessing that we are all speaking her name today.”

The satisfying resolution for having cost so many people unnecessary time and energy over something so fraudulently obtuse would be the obscurity that this person so very much deserves.

But meanwhile, the mess is still there, and it’s starting to smell.

Fear not! Many an excellent person has spent hours over the past weekend attempting to contain and correct it. Let’s take a look at what they’re doing, shall we?

First, oh, that trademark. The circumstances surrounding the granting of this trademark contain some ripe, stanky bullcrap, and marvelous people are on the case.

Ferocious retired patent attorney and author Keven Kneupper has filed a Petition to Cancel a Trademark with the US Patent and Trade Office, outlining in detail the manner in which the acquisition of the trademark was fraudulent and should therefore be cancelled.

You can read the redacted version of the filing on Dropbox. It’s delightful and most thorough.

A few tweets of note from Mr. Kneupper:

https://twitter.com/kneupperwriter/status/993360537743343616

So while the trademark was acquired on 1 May, and letters and email messages went out to authors over the last six days, the process to clean up the mess may take up to a year and a half. Moreover, Mr. Kneupper has underwritten the cost of this filing, reported to be around $800-$1000 dollars.

Similarly, authors who have had to redesign and reissue their covers and books are also enduring some of the cost of this mess, particularly since Amazon has begun removing books from sale.

This point is particularly important:

https://twitter.com/kneupperwriter/status/993588601077186560

RWA is working on a lot of behind-the-scenes advocacy, including asking Amazon to stop removing titles while the trademark is being contested:

We have contacted Amazon to provide them with detailed info on this matter and have asked if they will pause further removals/suspensions on books w/ titles containing "cocky" while this is being contested. We will provide more updates as possible when we receive their response. https://t.co/C1x1my9PCX

— RWA (@romancewriters) May 8, 2018

No word on what the response might be.

Update 5/9 10:45am: 

Amazon has responded to our request to say that they will not be removing titles from sale until this matter is resolved and have reinstated those they previously removed. We are still in discussion with counsel as to next steps and will report more as we are able. https://t.co/MCheapueye

— RWA (@romancewriters) May 9, 2018

Update 5/9 3:45pm: 

https://twitter.com/kneupperwriter/status/994292724760104960

And if @LeasonEllis ends up taking depositions related to #cockygate, we'll waive the cost of our electronic exhibit software https://t.co/BAJ7pOpL4P

— AgileLaw (@agilelaw) May 9, 2018

I reached out to RWA to ask what other efforts are in progress that they can talk about at present, and asked what authors who receive notices should do. The response was that “authors should contact their KDP rep and Carol Ritter at carol.ritter@rwa.org before doing anything else.”

And then, of course, there’s the humorous side.

Amid the many hashtags that compile the conversation about this foolish crap, there have been some excellent moments.

Jamila Jasper immediately retitled her book The Cockiest Cowboy To Have Ever Cocked, and put it back up for sale after she was targeted.

Jackie Barbosa has put out a call for submissions to an anthology all about…Cocky Cocker Spaniels.

Just Add Dogs! is always a solid strategy to any publishing venture, right? Indeed.

A brief note from my not-at-all-litigious friend, Zeb, who would submit a story except for the part wherein he is a dog:

Hi. I am Zeb. I am part Cavalier King Charles Spaniel and part Cocker Spaniel.

The Lady says my breed name is therefore King Cock. I should probably trademark my breed name but I am tired so it is naptime instead. 

Other new titles include the snort-worthy C*ocky Author by “Fettucine Holliday.”

And if you, too, are looking for a pen name, this Reddit/Books thread offers many people’s laudable efforts trying to remember the author’s name.

So, what next?

Well, mostly, we wait. Jackassery happens fast. Correcting scurrilous jackassery moves at a much slower pace. Ignominy followed by obscurity seems to be the likely outcome. Eventually.

While there isn’t a playbook or visible precedent for this type of deceitful trademark scam in romance fiction, CM Stone says that she’d interacted with the author in question amid get-rich-quick-by-writing-books-really-fast communities popular in some indie crowds. Her outlook is on the dire side:

And even if the acolytes start dropping away from the indie gurus, fear not. There’s still another way for the unscrupulous to feed off of other authors: litigation. Pour money into lawyers like you’ve poured into advertising. Threaten to sue if people don’t take their books down or pay you off, based off of a dubious trademark violation. Go after indie authors, obviously. Your natural prey. You’ll either thin the herd and reduce your competition or actually manage to bleed them for money.

Alas, I share a little of her pessimism. There will always be another way to scam people, to game the system, to play the algorithm to one’s benefit until the rules change and new methods are developed, then all of it will be packaged and sold to others.

But I do have some hope.

One thing I have learned from knowing so many attorneys both inside romance and outside of the romance community: much like authors, lawyers get ferociously angry when someone makes a mockery out of their profession. They take it very personally. If you want to make a bunch of lawyers angry, which I don’t advise, manipulate and make a joke out of the law and then brag about it. That’ll pull the red anger handle right quickly, much like plagiarism among authors. This kind of act is deeply offensive, hence the number of intellectual property and patent attorneys getting involved and offering to help, some extending their pro bono hours to do so.

The other reason I have faith in the ignominy and then obscurity of the individual in question: readers care very much about the books they read. Readers do pay attention. We’re looking for books to read and enjoy, and we are invested personally and actively in the community which produces the books we love. We care about the books we buy, the content therein, and the future of the genre. I know I’m paying attention and choosing where I put my energy and my eyeballs.

So while it may take a long time to overturn, and while it continues to cost people time, money, and energy they might have spent elsewhere, we are some cocksure, ferocious people, and we won’t let this stand unchallenged.

Updated 5/8, 7:33pm: Kevin Kneupper was a guest on the Horrible Writing podcast, talking about trademarks, cocks, and other relevant topics.