13:10, June 28 65 0 theguardian.com

2018-06-28 13:10:31
Books blog  CockyBot flies to the rescue in literature's trademark wars

Despite the fact that dragon slayers have thronged the pages of fantasy novels ever since Smaug was brought down in The Hobbit in 1937, an application to trademark the term “dragon slayer” was filed in the US just a few weeks ago.

The trademark was filed in connection with a series of books by Michael-Scott Earle. The application cites an Earle novel featuring a gold-tattooed Chicago firefighter starring in a “pulp fantasy harem adventure”. This is something we’re obviously keen to see – but as Cory Doctorow points out at Boingboing, this is an audacious attempt to trademark a generic phrase widely used in fantasy (more than 600 novels, by Doctorow’s count). Earle’s attempt comes hot on the heels of Faleena Hopkins’s much-disputed attempt to trademark the word “cocky” in relation to her line of romance novels. Are we witnessing the beginning of a wave of authors attempting to lay claim to commonly used words and phrases?

An engineer in the San Francisco Bay Area has set up the joyfully named CockyBot to monitor the situation, pulling new trademark applications related to fiction-writing from the US Patent and Trademark Office’s database. Some of the applications it has detected sound intriguing and amusing, little insights into authorly imaginations. I love the sound of “Ponysitters’ Club” and “Bjorn Esterday Was Not Born Yesterday”, of “warrior cats” and “the Super Pup of Strength and Her Sidekick Whirlygirl”.

Some, however, are broad enough to be concerning. There is an application to trademark “weird fantasy”, and indeed the word “big”.

CockyBot™ (@cockybot)

Who or what is CockyBot?

I'm a twitter bot that searches the USPTO for new applications to register trademarks that may be relevant to fiction authors and then tweets about them.

Find out more about me (including some code for build-your-own-bot types) at https://t.co/AWZLk4xoII

May 18, 2018

The person behind CockyBot, who asked to remain anonymous, says there has been a pretty clear increase in the fiction-related trademark registrations in recent years, with an “unusually high volume of new filings” in May following the uproar over #CockyGate. More than 100 trademarks applications relating to fiction were filed in May, versus a mean of 74 per month over the previous year.

“I imagine many of the filings may have been more of a defensive reaction than an attempt to copy [Hopkins’s] approach. But given that it’s happened at least once and the prevalence of questionable IP practices in other industries, I think it is something worth at least a bit of concern,” says the bot’s creator.

It’s not necessarily that the applications to trademark “big” or “dragon slayer” will be approved: CockyBot is merely highlighting when the applications for trademarks are being made, with the US Patent and Trademark Office yet to rule. The issue is that authors could be frightened off the disputed term by the prospect of future legal action – which happened in the Hopkins case, when she began contacting authors to ask them to remove “cocky” from their titles. And retailers will be keen to avoid potential legal clashes – Hopkins did persuade Amazon to have other authors’ books removed from sale.

“In terms of someone winning a lawsuit seeking to enforce a questionable mark, the risk is probably relatively low,” says CockyBot. “Of much greater concern may be action taken outside the courts. If a trademark holder notifies a retailer such as Amazon that they believe some book is infringing on one of their marks, it opens the retailer up to secondary liability … if they do nothing and the holder does end up managing to prove infringement. Even if a claim seems questionable, from a business standpoint the risk of liability may make it tempting for the retailer to simply pull the allegedly infringing goods as a matter of course, especially if they aren’t a particularly large source of revenue for the retailer.” While Amazon reversed its decision in the Hopkins case and restored the books it had removed, some authors did temporarily lose a source of income. “For smaller, independent authors, that sort of policy could be pretty harmful.”

Fortunately, riding to their rescue is CockyBot, which also has a website advising authors concerned about a potential trademark to coordinate letters of protest – as well, of course, as continuing to monitor ongoing applications, where recent filings include “storytellers” and “The Dragon Prince”. CockyBot is the hero our times deserve.

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