Over the past 20 years, the world has become a lot more cognizant of the risks of unbalanced copyright, as what was once a way to help creators gain leverage over publishers, studios and labels became a rubric for mass surveillance, unaccountable censorship and monopolism.
Trademark trolls haven't gotten as much attention, but they, too, are on the rise. Trademark — like copyright — has a sound underlying purpose: trademark lets companies sue rivals when they sell products or services in ways that deceive the public. When you buy a ticket to "Hamilton," you want to see the actual Hamilton, and not some knock-off that has deceptively advertised itself in order to trick you in the door.
But, thanks to the absurd euphemism of "intellectual property", trademark — like copyright — has expanded in both its scope and its abuse over decades, creating trademark trolls who insist that trademark is the right to own commonly used words and threaten people who utter them in vain, and not merely a way to protect the public from fraudulent usage.
Ground zero for this the craft beer industry, whose shenanigans are so bizarre that they've spawned a whole genre of Techdirt posts. Craft beer brewers use puns to name their beers, and they use similar visual conventions in their marketing and trade dress, and every craft brewer is seemingly convinced that they were the first person to come up with a timeworn pun or illustration, with the result being that these brewers are spending more time threatening and suing each other than they are brewing actual beer.
The contagion has spread to romance novels. The genre is similar to craft beer in some ways: its practictioners are largely independents who are passionate about their work, enjoy a close relationship with their customers, and are inventing a new craft practice that is rising up to compete with a huge industry dominated by a few giant corporations.
Like craft beer, fans and pros in the romance sector are largely collegial, trading tips and helping one another along in a spirit of camaraderie.
But ever garden has a serpent, and romance's fall from grace came thanks to Faleena Hopkins, a romance author who trademarked the widely used word "Cocky" in connection with romance titles, and who has been aggressively threatening and censoring her industry colleagues who use the term without ever having heard of her or her work.
Hopkins is a classic trademark troll: belligerent and half-educated about trademark law, full of half-truths about the "defend it or lose it" principle that allegedly puts trademarks at risk of "genericide" if the trademark holder doesn't terrorize any who even thinks about using the mark. In classic trademark troll fashion, she has seemingly abandoned writing or promoting her books in favor of making a nuisance of herself by threatening her colleagues and hectoring them about how easy it is for other people to simply give up on using a widespread, longstanding title convention.
And Hopkins's victims are similar to craft brewers in that none of them really understand what's going on, they can't afford lawyers, they'd rather be plying their trade than litigating, and none of them were paying attention to the Federal Register in order to challenge spurious trademark applications.
The Romance Writers of America is working with an attorney to see about challenging Hopkins's trademark, and there are other challenges pending, as well as a petition to cancel the mark.
That's all very good to hear, but here's my fear: for every thousand romance writers who are aghast at Hopkins's theft of the language, there is one sociopath who is thinking about how great it would be if they, too, could lay claim to a common word and make it their "intellectual property." You know, the kind of person who hasn't yet figured out that every sentence that contains the word "brand" is almost certainly bullshit. It doesn't take many of these creeps to create a trademark thicket — think of how a handful of patent trolls sent tens of thousands of legal threats, casting a wide net to fish for frightened small businesspeople who'd pay them ransom that was priced to be cheaper than contacting a lawyer.
The thing is, there's a fine line between the cooperative, entrepreneurial scenes that you get with craft beer (and open source hardware, and independent romance publishing) and a kind of manic, tunnel-visioned, amoral drive to lay sole claim to the thing you've all built together and build an empire on it. In 1976, a young programmer who'd copied a widely used product, put his name on it, and decided to sell it sent a letter to his fellow hobbyists telling them that he was enclosing their commons and they'd better not try to take down the barbed wire he was stringing up all over the range they'd enjoyed together — and then he founded Microsoft, the first digital monopolist.
Faleena Hopkins's claims to own the word "cocky" could be the "Letter to Hobbyists" of the independent romance scene: the original sin that turns a cooperative industry full of individual practitioners who like and help each other into a race to see who can monopolize the sector and claim it for their own.
Others are not so sure. Chocolat author Joanne Harris punned that "such behaviour is considered a dick move" on her blog, adding more seriously that "if it were really possible to legally forbid authors from using a certain common word in their book titles, then the whole publishing industry would be down the drain in a matter of days".
The Romance Writers of America is working with an intellectual property lawyer in response to Hopkins's trademark, and has asked writers contacted by Hopkins to get in touch. Author and retired lawyer Kevin Kneupper has separately filed a legal challenge to have the trademark cancelled, writing that "as a competing author in the same field who has described characters in his books … as 'cocky' and who may use this word in … future titles", the registration is "causing injury and damage".
"Romance novels frequently involve 'alpha males' as their protagonists – and those alpha males are often described in the titles to the works using adjectives such as 'cocky'," says Kneupper's petition, arguing that "such generic terms cannot be subject to a trademark".
Romantic novelist's trademarking of word 'cocky' sparks outcry
[Alison Flood/The Guardian]