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Thread by @courtneymilan: "I’ve had a bunch of people in my mentions ask me for a summary of , so here goes...with links, and some new additions […]" #cockygate #byefaleena

26 tweets, 5 min read
I’ve had a bunch of people in my mentions ask me for a summary of #cockygate #byefaleena, so here goes...with links, and some new additions at the end.
Faleena Hopkins is an author who writes a series about a family whose last name is Cocker. The books in this series all start with the word “cocky” which is written in the Northwell font from Set Sail Studios (you can see it here): setsailstudios.com/downloads/nort…
Her LLC registered trademarks to a wordmark (consisting of the word “cocky” written in the Northwell font) as well as the word “cocky” used on a downloadable series of ebooks.
She then proceeded to send cease and desist notices to basically everyone who had a book with “cocky” in the title, including people who had published those books before she published her series.
Marc Whipple (@legalinspire) graciously wrote a post about the legal issues involved here:

legalinspiration.com/?p=503
Here is an example of the kind of cease and desist she is sending.

There are many things in here that are not likely to be true. It is almost certainly not true that her lawyer examined the person’s specific book and the circumstances surrounding it, and said that she had a high probability of winning the suit and attorney’s fees.
Attorney’s fees are not automatically granted to prevailing parties in trademark disputes, and so no attorney would *ever* use absolute language like what she says.

shadesofgraylaw.com/2016/11/02/big…
It’s also very unlikely that an attorney would have either made a blanket statement about what was and wasn’t allowed (we don’t like blanket statements).
And it’s also unlikely that they spent the billable hours to evaluate the strength of her claim in this specific instance and yet didn’t send the C&D themselves.
Furthermore, entertainment law attorneys GENERALLY know the body that issues trademark registrations, and it’s not the Federal Trademark Commission.
So. My read is that the most likely scenario is that she’s basically writing her own C&D and using the guy who filed her trademark as a sword without his permission.
In any event, this is Bad and the law is Not On Her Side, and the Community is Having Fun With It.
Having walked up to the proverbial hornet’s nest and thwacked it repeatedly with a baseball bat emblazoned with the word “cocky” in a font Faleena doesn’t own, she is now unhappy that she is being bullied by hornets.
So in any event, multiple people correctly identified the font that she has a trademark registration on, and checked the terms and conditions of that font license, and it turns out that you can’t use it to make trademarked items.

WHOOPS.
We reached out to the designer on Twitter. He is on vacation, but he very nicely explained that no, she definitely did not have his permission to use the font in a trademark.

And this is where I have to veer off the path and tell you something weird about intellectual property.

IP gives you a right to STOP OTHERS from using a certain property.

It does not necessarily give you an INDEPENDENT RIGHT to use it.
So, for instance, you can get a patent on a new drug, and the FDA can ban it. That’s just tough cookies for you.
Or you could write an entire book that divulges trade secrets that you acquired under and NDA, and have a copyright in the book, but not be able to publish it anywhere. Too bad.
And—weirdly enough—it is hypothetically possible to gank someone’s copyrighted art, get a trademark in it after using it repeatedly in commerce, and yet not legally have the right to use it yourself.
You do NOT WANT to do this latter thing. UNDER NO CIRCUMSTANCES do you ever want someone else to own a copyright to your trademark.

Hypothetically good due diligence before filing will prevent this.
The actual way that this particular case would shake out is kind of weird, because American copyright law is weird about font protection (i.e. it’s really not very protective) BUT the font designer in question is in the UK, where the laws are much stronger.
I know enough to know that I don’t know what country’s laws would apply or what they would mean in this case.
BUT—for the sake of our own hypothetical amusement—the font designer in question *could* possibly go to Amazon and ask them to take down the covers because she is using his font on them as a trademark, which is an infringement of his copyright.
And you know what?

That would be *hilarious*.
(Hey y’all, this thread is crashing my Twitter app so I’m muting it. If there’s something you *really* think I should know @ me directly, but use judgement! Thanks!)
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