You may not think much about trademark law, but people who own trademarks think a lot about the words you write and the images you post. Allow me to introduce the following recent cases as evidence:
- The U.S. Naval Academy (my alma mater) objected to the use of a logo made by a collaboration between the shoe company, Nike, and a sportswear company, Undefeated.
- The restaurant chain Olive Garden objected to use of the term “Olive Garden” in Vincent “Vino” Malone’s blog.
- Author Faleena Hopkins obtained a trademark for the use of the word “cocky” in romance novel titles and objected to other authors’ use of that title word.
- A media firm has submitted a trademark application for use of the term “dragon slayer” in the title of fantasy books.
In the first case, following an outcry on social media, Nike apologized and cancelled a planned fashion collection that would have featured the logo.
In the second case, the blogger wrote a respectful (and hilarious) letter to the restaurant chain. Olive Garden decided to take no further legal action and sent Mr. Malone a $50 gift card.
The third case (now termed Cockygate) has created pandemonium in the romance novel industry and is all over social media. After obtaining her trademark, Ms. Hopkins sent cease-and-desist letters to numerous other romance authors who’d used the word ‘cocky’ in their romance novel titles. Initially, Amazon removed those authors’ works from its site, but has since restored them, pending legal resolution. One romance author and retired lawyer filed an appeal with the U.S. Patent and Trademark Office, challenging the issuance of the trademark. Another author has published an anthology called Cocktales, where all the proceeds will go to authors impacted by Hopkins’ actions, and to the Romance Writers of America advocacy fund.
The fourth case is pending and the USPTO may not grant the “Dragon Slayer” trademark, but the ‘cocky’ case probably inspired that application.
I’m most concerned about the last two cases, since they involve fiction writing. I understand the value of trademarks, and the need to protect them. I assume there is a stringent process the USPTO uses to process applications and grant trademarks, and that it followed the process in the ‘cocky’ case.
It strikes me as odd that one can trademark a single word, even a valid dictionary word, as opposed to one the author made up. If USPTO policies allow that, perhaps it’s time to question those policies.
Further, if an author can obtain a trademark on the use of the word ‘cocky’ in a book title, that may well lead to an open floodgate of similar trademark applications, such as ‘dragon slayer.’
Moreover, as author Steve Brachmann points out in this excellent post, in this age of social media, a strong-handed attempt to enforce your trademark can backfire.
Writers no longer live in separate, isolated bubbles; they communicate freely. If one author receives a cease-and-desist letter, chances are everyone in that author’s circle will soon know. In the ‘cocky’ case, the predominant opinion across social media is running against Ms. Hopkins. We’ll have to wait and see if she prevails in the courts, where law matters more than popular sentiment.
Perhaps it’s time I applied for a trademark on my pseudonym—
Poseidon’s Scribe