Cocky? Cockier? Cockiest?
While I don’t live in the United States of America, Canada and most countries in “the West” do share common legal approaches. My OPINIONS should not be considered legal advice, but should make for a good starting point for those of you who have been witness to the latest travesty in indie-authordom. Unless the reprobates currently running the U.S.A. have completely flushed America down the proverbial turlet, then what I am about to share with you will probably still be upheld in their courts.
What is a Trade Mark?
I rarely use Wikipedia as a source, but they did offer a sound definition in this case.
“A trademark, trade mark, or trade-mark is a recognizable sign, design, or expression which identifies products or services of a particular source from those of others, although trademarks used to identify services are usually called service marks. The trademark owner can be an individual, business organization, or any legal entity. A trademark may be located on a package, a label, a voucher, or on the product itself. For the sake of corporate identity, trademarks are often displayed on company buildings.”
IF some poor misinformed soul did want to Trade Mark the word cocky, they are completely within their legal rights to do so. HOWEVER, as no person or corporate entity may hold title of a commonly used word, the Trade Mark office requires that the word in question be presented in an original form, a.k.a. artwork and even a custom font or in an existing font USED WITH WRITTEN PERMISSION.
You can Trade Mark a LOGO containing a word, but not the word itself.
We might as well cover all the bases while we are on this ridiculous topic.
What is a Patent?
“A government authority or license conferring a right or title for a set period, especially the sole right to exclude others from making, using, or selling an invention.”
So unless the individual in question INVENTED the word, they can’t go down this road.
What is a Copyright?
“The exclusive legal right, given to an originator or an assignee to print, publish, perform, film, or record literary, artistic, or musical material, and to authorize others to do the same.”
Every time a writer PUBLISHES, they are protected by Copyright law. HOWEVER, we live in an age where everyone sues their neighbor over the slightest thing. Thanks for that America. This translates into a shit pile of lawyers making money on every tiny fender-bender or slip-and-fall. Authors would be well advised to actually get Copyright protection in their own country at the very least, as it carries a bit more weight than a mere publishing date.
Can you Copyright a word?
Yes, if it is the title of your work and no one has ever used it before. HOWEVER, this only protects the Copyright holder from having others use the EXACT SAME TITLE. It does not give the Copyright holder EXCLUSIVE rights to the word.
What is a frivolous lawsuit?
They are not called “sharks” for nothing.
“Is the practice of starting or carrying on lawsuits that, due to their lack of legal merit, have little to no chance of being won.“
Yes kids, this is probably what is going on here. Some law firm is exploiting this poor author knowing full well the case has no chance.
So why is Amazon allegedly pulling down books with the word cocky in the title or in the key words?
There are any number of possibilities. But first, why am I not worried about using the word Amazon in this piece? It’s simple, they don’t own the word—just the presentation of the word as a Trade Marked corporate logo in context with a certain type of business. The Amazon river was there long before the company, and it will be there long after the company is gone.
- Indie authors are not that important to Amazon as they represent only 16% of the company’s total book sales. (See the Publishers Weekly article.)
- Lawyers are expensive; even to a corporate giant. There is no upside for Amazon to challenge the alleged letter sent from this author’s law firm. It is easier, and w-a-y cheaper, to just piss off a few inconsequential indie authors than it is to wage a legal battle on their behalf.
- A less likely, but plausible reason might be that some middle manager panicked when the legal notice arrived on their desk, causing them to make “an executive decision” without running it up the flagpole first.
Smashwords and Ingram Spark are looking better and better, aren’t they?
If and when . . .
. . . I get a cease and desist order telling me to take down this blog because it contains the word cocky, I will have my lawyer fire one back telling them what a cocky prick I am, and that I suggested ‘they should all have intercourse with themselves’. Of course what I would actually say to my lawyer in this hypothetical instance would be: Tell them they can all go f*ck themselves.
And here kids is the moral of the story.
A frivolous lawsuit is there to incite an EMOTIONAL RESPONSE. My lawyer is there to START A NEGOTIATION, as is the lawyer of this author. My lawyer will water down my message to make me appear more reasonable so A RESOLUTION CAN BE REACHED.
Both authors pay.
Both law firms get paid.
Amazon was the only one to make a good business decision.
As usual, my mind is questioning the motivations involved here. Is this a PR stunt? Did the-powers-that-be create a new distraction just for indie authors so we won’t pay attention to a US administration just itching for a war with anybody? I guess time will tell. Until then, stay cocky everyone.