Is The #Cockygate Closed? (Updated x2)

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Previous posts on Cockygate:

Romance Author Gets Unduly Cocky Over Registered Trademark: http://legalinspiration.com/?p=503

#Cockygate Take Two: This Time It’s Judicial: http://legalinspiration.com/?p=538

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Hello, friends!

Well, it’s been a weird ride. And although it seems like it’s been forever, in Federal court case terms, it’s been a fairly short one. Yesterday Faleena Hopkins and Hop Hop Productions filed a Motion to Dismiss with Prejudice in Hop Hop Productions Inc. v. Kneupper et al:

Motion to Dismiss – Hop Hop Productions Inc. v. Kneupper et al

If the judge grants the motion, and he almost certainly will, this means is that neither plaintiff (Ms. Hopkins or her company Hop Hop Productions) can file another lawsuit against the same defendants for the same legal causes of action based on the same facts. (That’s the “with prejudice” part.)

So is the #Cockygate closed? Will our sexy roosters now stay safely within the barnyard of alpha romance tales?

Maybe.

First off, a big shout-out to Ethan Jacobs, who pretty much called the outcome:

…and they’ve settled. https://t.co/paoEFaWVZt

— Ethan Jacobs (@ethanjacobslaw) July 24, 2018

… and was kind enough to set me up an autonotifier for filings in the case since he practices in the SDNY.

Second, yes, this case is pretty much over unless something bizarre happens. Or if one party or the other breaches the terms of the alleged settlement. Although then we’d be in court for breach of contract, probably, although since new violations create new causes of action new trademark/unfair competition claims could potentially also be made. A settlement is a contract and usually if a settlement is violated, the old claims don’t miraculously revive, the parties go to court and ask for it to be enforced and/or for damages related to the violation.

BUT.

The settlement is between these parties. It does not affect anyone else. Its terms will probably not even be made public. At this stage of the case the court has little or no authority to approve or deny it (even if it cared to which it does not) and it is not a court proceeding, so it does not have to be filed or published. The court made zero binding determinations as to the validity of the COCKY marks or what it would take to infringe them.

Even if part of the settlement is that Hop Hop has to cancel its trademark registrations, it could not sue anyone else on those registrations, although it could still sue them for violation of “common law” trademark, unfair competition, et cetera. That’s a whole class in law school right there.

So, Hop Hop could send out a new slew of Cease and Desist letters, Amazon (and other publisher) takedown requests, and/or lawsuits tomorrow if it wanted to. Or, heck, it’s only 11AM in NYC as I write this, maybe even today! In that regard, from a legal standpoint, the #cockygate is still wide open, and the fox could hop right through it and start chasing chickens, even dashing rooster-type chickens. The settlement could include broader restrictions on enforcing the marks: that would be highly unusual but certainly possible. That we’ll have to wait and find out about.

Also, part of the settlement could be to stop opposing the Petition to Cancel that author/attorney Kevin Kneupper filed in the Patent and Trademark Office’s Trademark Trial and Appeals Board and/or to deliberately abandon the registration. But if it’s not and/or the plaintiff does not comply, that will go on as scheduled. Note that Mr. Kneupper was dismissed from the case weeks ago. I don’t know if he actively participated in the last round of settlement negotiations: my guess is that he did not but it is only a guess. Therefore the settlement may not address the PTO proceedings at all.

So, to sum up:

1. Tara Crescent, Jennifer Watson, and (probably) Kevin Kneupper have “won” in that the case against them has been dismissed and cannot be reinstated absent new violations.
2. Both parties have “won” in that a settlement acceptable to both of them has been negotiated and agreed upon.
3. The proceeding in the PTO regarding the ultimate validity of the COCKY marks will proceed in due course.
4. Unless and until Hop Hop Productions abandons the registrations or they are cancelled as a result of TTAB proceedings, Hop Hop Productions could bring new suits or take other enforcement actions at any time.
5. Even if the trademark registrations go away, Hop Hop Productions could take other legal and economic actions against persons it feels are violating unfair competition laws of various kinds. There is no way for that right to be taken away from them. Nor, to be blunt, should there be.

So that’s a wrap for now. Thanks for reading!

UPDATE:

The defendants have released a public statement which says that Hop Hop Productions has agreed to “surrender” its trademark registrations for COCKY. This probably means they have agreed to file a surrender of registration for cancellation with the Patent and Trademark Office, which will result in the registrations being cancelled. See:

https://www.cockyauthors.com/

UPDATE x2:

Hop Hop Productions has filed surrender documents in the USPTO for the COCKY mark registrations, both the word mark and the script mark. You can see them here:

COCKY Script Mark Surrender

COCKY Word Mark Surrender

Again (see #5 above) that does not mean Hop Hop is entirely without legal recourse if someone violates the laws against unfair competition. But it does mean that as far as Federal trademark suits, this is probably pretty much the end of the #cockygate saga.

By the way, if you appreciate my work for the arts and would like to support it, donations to help cover my costs (the website, pro bono assistance for writers and other creators, and travel to cons to do educational panels) please consider leaving a tip here:

Thanks!

-Marc