That might be why I got such a kick out of a case in the Southern District of New York involving a romance author who claimed exclusive rights to use the word “cocky” in book titles. While I don't think this would be an obstacle for me personally (for a working title, how about “Collateral Estoppel of My Heart”? Total bestseller, right?), it was a remarkable attempt to monopolize a common word. Author Faleena Hopkins has self-published a 19 “cocky” books, including Cocky Biker, Cocky Cowboy, Cocky Heart Surgeon, Cocky Quarterback, Cocky Marine and Cocky Rock Star. (Sorry guys—No Cocky Lawyer. Clearly the world needs “Collateral Estoppel of My Heart.”) Hopkins even successfully trademarked the word “cocky” for use in romance novel titles—though the registration is currently being challenged before the Trademark Trial and Appeal Board. In August 2017, author Tara Crescent came out with a book called “Her Cocky Doctors,” followed a few months later by “Her Cocky Firefighters.” To Hopkins, this was trademark infringement, an intentional “effort to confuse the consumer into believing these publications were part of the Hopkins' Cocky novel series” and increase book sales. I get why she's unhappy—those aren't the most original titles (unlike, ahem, the gem that is “Collateral Estoppel of my Heart”). But on the other hand, c'mon. It's not like she invented the word “cocky.” Plenty of other romance novels used it in titles before, including “My Cocky Stepbrother” (ew) by Claire Sutcliffe; “Bite Me, Cocky” (double ew) by Lucee Joie and “Cocky Ballsboa: An Erotic Parody” by K. Dianysus (no comment). As Crescent pointed out in her declaration, the word “cocky” is a commonly used in romance titles “because of its double entendre as a sexual innuendo that references a part of the male anatomy and a synonym for being arrogant or a 'bad boy'—both of which are relevant themes in these types of stories.” Got it. Hopkins also sent notices to multiple authors telling them to change the titles of their books and asked Amazon to take down all other cocky-titled romance books, according to the Authors Guild. In an unusual move, the guild and the Romance Writers of America stepped in to defend the authors whose books were targeted, and asked Amazon to put the books back up (Amazon agreed). They also hired outside counsel from Cowan Debaets Abrahams & Sheppard, who teamed up with lawyers from Leason Ellis and Hunton Andrews Kurth for two of the individual defendants. “The Authors Guild seldom litigates on behalf of individual authors, but this is an important issue for authors generally,” the guild said in a written statement . “Authors should be able to express themselves in their choice of titles. A single word commonly used in book titles cannot be 'owned' by one author. This is especially true when, as here, the word has already been in use by other authors in titles for years.” That wasn't all. Several dozen authors banded together to produce an anthology entitled “ Cocktales: The Cocky Collective ” with the goal of raising funds “to fight against obstruction of creative expression. Specifically, what we believe are obstruction attempts through the trademarking of common (single) words for titicular use in books.” Hopkins hit back. Represented by Brooklyn solo practitioner Christopher Scott Cardillo, she asked Senior U.S. District Judge Alvin Hellerstein in Manhattan on May 25 to enjoin the publication of Cocktales, which was due out on May 26, comparing the authors to “a pack of bloodthirsty wolves” who are trying to dilute her trademark and “thereby destroying her reputation and future earning potential.” Hellerstein initially said yes, but quickly changed his mind. On May 29, he dissolved the preliminary injunction, and June 1, he ruled that Hopkins was not likely to succeed on the merits. As the lawyers for the defendants wrote in a joint filing , “No one should hold a monopoly on cocky.” Now those are words to live by. Got an idea for a legal romance title that's as awful as “Collateral Estoppel of My Heart”? Send me your best (worst) ideas to share at [email protected]. |

Lateral Watch

Appellate litigator Allyson Ho has joined Gibson, Dunn & Crutcher as a partner in Dallas from Morgan, Lewis & Bockius. As The National Law Journal reports, Ho has argued four cases before the U.S. Supreme Court, including the patent case Oil States Energy Services v. Greene's Energy Group , decided in April. Also—fun fact—her husband is James Ho, a former Gibson Dunn partner who is now a judge on the U.S. Court of Appeals for the Fifth Circuit. For more, see Veteran SCOTUS Advocate Allyson Ho Jumps to Gibson Dunn From Morgan Lewis IP litigator Esha Bandyopadhyay spent a mere nine months at Winston & Strawn before decamping for Fish & Richardson as a partner in Silicon Valley. According to Fish, she “brings close to two decades of experience counseling and representing Fortune 100 companies, emerging startups and ground-breaking inventors in intellectual property and commercial litigation matters.” For more, see Fish & Richardson Hire Highlights the Fast Moves of an IP Litigator |

Quote of the Day

“To put it simply, in the long discussions of what to do with James Comey in 2016, a woodchipper was not one of those options.” --GW law professor Jonathan Turley on Rudy Giuliani's (bizarre) comment that the president cannot be subpoenaed or indicted, even if—hypothetically—Trump had shot James Comey. |

What I'm Reading

Where the Justices Found Middle Ground in Gay Wedding Cake Case The outcome is a “contained” defeat for the gay and lesbian community and a limited victory for organized supporters of the baker. Gender Bias Lawsuit Against Steptoe Dropped in Wake of SCOTUS Decision on Employee Arbitration Ex-associate Ji-In Houck, who sued Steptoe a year ago, stipulated to the dismissal of her case on May 31 and filed a demand for arbitration before JAMS in Los Angeles on June 1. In Antitrust Case, Lawyers and Judge Try to Figure Out the Value of Eggs On the eve of closing arguments in a month-long antitrust trial, a federal judge in Pennsylvania wrote that before the jury could be presented with evidence regarding the value of eggs, the court had to go through the academic exercise of defining “value.” Because apparently going to the grocery store would have been too easy. Atlanta Law Firm Loses Seven-Year Fee Fight at US Supreme Court Lamar, Archer & Cofrin--represented by former U.S. Solicitor General Gregory Garre of Latham & Watkins--can't collect from a client who contended his unpaid legal fees were dischargeable in bankruptcy. Société Générale Agrees to $860M Penalty in FCPA, LIBOR Cases “Today's resolution … sends a strong message that transnational corruption and manipulation of our markets will be met with a global and coordinated law enforcement response.” Skadden's Pat Fitzgerald Takes on UNC Defense in Admissions Suit He takes over from ex-Skadden partner Michael Scudder, now a judge on the Seventh Circuit, in defending UNC from allegations that it discriminated against white and Asian students. Trial Linking Talc to 22 Ovarian Cancer Cases Set to Open in Mo. Heading Johnson & Johnson's trial team are Peter Bicks, Morton Dubin and Lisa Simpson of Orrick, Herrington & Sutcliffe, squaring off against plaintiffs lawyers including W. Mark Lanier. Trump Tweet Revives Old Question: Can the President Pardon Himself? For all our sakes, I hope this remains a hypothetical.