We may look at the romance novels we see at supermarkets or airport shops as something of a joke, with overwrought titles and lascivious covers. But romance novels are a big business; according to the Romance Writers of America website, romance novels account for over $1 billion in sales and make up 34% of the fiction market. For successful authors, there’s a good living to be made in writing romance fiction, or, in the case of one writer, potential money to be made in aggressively pursuing trademark lawsuits.
Trolls in the intellectual property space are those who gain a trademark over an overly broad idea or concept or phrase and use that trademark or copyright or patent to threaten legal action against anyone who they think violates their rights, often in the hopes of financial settlement. In this regard, intellectual property law appears a well-intentioned but flawed system, allowing certain bad faith actors to game the system to their own benefit rather than potentially restrict the ability of creators to protect their creative work.
Such is the case with Faleena Hopkins, a romance novelist who has been dubbed a trademark troll by her peers in the romance fiction industry. Hopkins was granted a trademark on the work “cocky” in relation to romance e-books in April 2018, and has subsequently used the mark to pursue other authors who use the word in the titles of their own works of romantic fiction. The Guardian notes several authors who have reported receiving notices from Hopkins about their book titles infringing upon her trademark, claiming that she is attempting to protect buyers who might mistakenly believe that they are purchasing her books.
The issue this creates is twofold: the tropes of romance novels are often replete with characters that could be described as “cocky”, and are likely to be described as such in the titles of authors’ works, and the authors who create these and other romance novels are largely small, independent artists who can’t afford to take potential trademark cases to court. The romance writer community as a whole seems to be aligned against Hopkins’ quest to claim the term; the Romance Writers of America posted a blog stating that they are in contact with an IP lawyer to determine next steps, and a petition on MoveOn to cancel the trademark has over 26,000 signatures as of this writing.
The backlash and concerted effort against Hopkins’ trademark serve as evidence that the current system can be used to stifle creativity as much as protect it. FOr as much though as is given to protecting against infringement, it might be necessary to consider how to protect against malicious enforcement.
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