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One of the things about Open Source is we can name things whatever we want. This comes with a great amount of responsibility though, since we have to both come up with unique, memorable names that make sense and respect everyone else.
Respect is a funny thing with names. For example, in order to respect my friend Tracy, I wouldn’t name my company LYKES Inc, because that would be very similar to her company of YIKES Inc. But also I know she’s trademarked the domain, which is a smart choice, and that means I have to respect her trademark as well.
Speaking of Trademarks Speaking of Trademarks
When it comes to trademarks, everything’s a little messier too.
This isn’t about not naming your plugin “Google Analytics.”
This is about when you own a trademark and people are infringing on it, and how you can chose (or nor) to behave.
This is about being cocky.
There’s no other way to explain this, but a romance novelist trademarked the word ‘cocky.’
No, this isn’t a joke. Since 2015, for a number of reasons, the word ‘cocky’ has been super popular with romance authors, and one of them decided to trademark the word. In 2018 she applied for, and got, a trademark on the word. Not just the word mark (which is like Pepsi’s trademark on the word and the font), but also the actual word cocky, as used in romance novels.
And then she did exact what you’re thinking, and she decided to sue everyone else who was using it.
Trademark Bullying Trademark Bullying
Fallen Hopkins said her reasoning was her users. “I receive letters from readers who lost money thinking they bought my series. I’m protecting them and that’s what trademarks are meant for.”
When you hear it that way, it does sound a little sensible, doesn’t it? She wanted to help her readers be less confused that “The Cocky Cowboy” isn’t a book in her series “The Cocky Series” (in which there is a book called “Cocky Cowboy”). She kicked the author of “The Cocky Cowboy,” who renamed her book “The Cockiest Cowboy To Have Ever Cocked” and now I’m a little in love.
Now most of the time you can’t actually do that! I mean, I could name a book “Catcher in the Rye” if I wanted to, because you can’t copyright book or story titles. What you can do is the title of the book as it pertains to non-book goods and services, as long as the goods aren’t the book. With a trademark, if I have a book series, I can trademark the series name (see “Harry Potter and …”), but not a single individual title. Until I make a movie.
But more to the point here, Hopkins was being a damn bully by deciding she was going act in bad faith.
This is Legal? This is Legal?
Yes. It’s legal, but it’s bad faith.
Bad faith is simply you doing something that is legal but you know it’s the bad thing to do.
That’s not a legal definition, by the way. If you look it up in a law dictionary, it involves the intent to deceive, which is a weirder thing. The real question is why is this legal? Right? Why would someone possibly be able to trademark cocky!?
Turns out, it’s actually not hard to trademark a common word if you do it right. Take Apple, for example. You know, Macintosh the company? apple.com? Right, they trademarked Apple, but only as it relates to computers. I can name my car company Apple Cars if I wanted, but I better keep away from self-driving cars, eh?
Legal Doesn’t Make it Right Legal Doesn’t Make it Right
There’s a catch to all this. If you’re in the USA, you may be aware of the First Amendment. You know the one? Well there’s a doctrine about all this that basically exists to stop trademark law from stomping all over our rights. People build careers on this stuff, so the short version for you is that folks who are chapped about this have a damn good case against her doing this maliciously, and getting the trademark overturned.
The problem is they need lots of money, which they don’t have. We’re talking about a bunch of indie e-book authors, after all. They may not have money but they have the internet, and they’ve been using it to savagely take down Hopkin’s reputation.
You really should never piss off people who are good with words.
Cockygate Doesn’t Hold Up Cockygate Doesn’t Hold Up
The good news in all this is the trademark’s being canceled. The bad news is that someone else with deeper pockets probably has a great idea now and is going to be an even bigger problem for people later on.
People will get confused. People can’t even tell differently named web hosts apart, so of course someone will think “Joe’s Google Analytics for Sports Sites” is an official Google plugin on WordPress.org (seriously someone did). They just don’t read and think, and all the trademark protection in the world isn’t going to help them out.
But think about how you’re approaching this. Ask people to change the display name of things, and ask them to make sure it’s clear they’re not related to you. And when someone gets confused, point out “That plugin/app doesn’t have my trademark’d logo, so you can see it’s not mine. Sorry about the confusion, here’s mine.”
If you’re interested, read Vox’s explanation on cockygate and please, don’t be a cock when you’re protecting your trademark.