ANOTHER UPDATE 8/11/18: Fiction War continues to respond. Note the reference to "bullies."Thank you for your feedback and thoughtful analysis — we’d like to give your followers $10 off Fiction War Fall registration with this Promotional Code: WRITERBEWARE https://t.co/LsvWui76do— Fiction War (@fictionwar) August 11, 2018
The ASA noted that [United P.C.'s] ad used the terms "publish" and "publishes" and stated that that service would be free of charge. We noted that the complainant reported being asked to pay for corrections, designing the front and back covers and the additional cost of publishing an e-book. We asked United Publisher to comment on that and for details of the proportion of respondents who kept to the free of charge contract and the proportion that chose to pay for additional services, but that information was not forthcoming....Because United Publisher had not supplied information that showed other respondents had not incurred similar costs, we concluded that the claims that United Publisher published books free of charge were misleading.Online complaints that post-date the ASA's finding suggest that United P.C. hasn't changed its ways.
Note that neither of [Hopkins' trademarks] is, for example, “a trademark on the word ‘COCKY’ as used in book titles.” The registrations cover a book series, and this is made evident if one looks at the 9-page specimen of use she submitted to the Trademark Office to support the registration: http://tsdr.uspto.gov/documentviewer?caseId=sn87604968&docId=ORC20180416120311#docIndex=9&page=1. Note that “Cocky” appears in each of the titles in a manner that connotes that the book is printed as part of the “Cocky”-brand book series. Indeed, without the fact the word is used as part of a book series, it is unlikely Hop Hop Productions [Hopkins' company] could have obtained the registrations.Most legal commentary that I've read on l'affaire Cocky seems to agree that Hopkins' trademarks wouldn't stand up to a legal challenge. But authors who receive her threats--which admittedly are scary--may not realize this, or be able to afford legal counsel (at least some authors have already re-titled their books). Also, more concerningly, Hopkins is sending takedown requests to Amazon, which appears to be complying in at least some cases. Once Amazon takes down your book in response to a challenge, getting it reinstated is a nightmare.
This is because--and this is critical--in order for a trademark to exist and be registrable and enforceable, it must perform a “source identification function.” Here, Hop Hop was able to convince the Trademark Office that it has, since June of 2016, used the word “Cocky” to indicate the SOURCE of a series of romance books, and thus it was able to get it registered. There likely had to be a series of books for Hop Hop to convince the Trademark Office that the word “Cocky” performed this source identification function—one book with “Cocky” in the title would likely not have been enough to convince the Trademark Office, especially given that Hop Hop has ostensibly used the mark for less than two years. Just like when people see “Harlequin” on a book, they think of Harlequin Enterprises as the SOURCE of that book because “Harlequin” indicates more than just a book title. It indicates the SOURCE. See http://tsdr.uspto.gov/documentviewer?caseId=sn72184920&docId=ORC20081030112630#docIndex=10&page=1.
Because source identification is necessary to create and register a trademark, in order for there to be trademark INFRINGEMENT, as Hop Hop has apparently alleged in certain cases, the allegedly infringing “thing” must also be performing a source identification function. Thus, not all uses of a word perform a source identification function, and if there is no such use, there likely can be no trademark infringement.
For example, imagine I titled my book, “The Apple Tree and the Pheasant.” Would a consumer realistically believe that Apple Computer was the source of that book? No. Or, imagine I titled my book, “The Harlequin Pleased the King.” Based strictly on that use of the word “harlequin,” would a consumer think that Harlequin Enterprises was the source of my book? No, and thus no trademark infringement.
This is supported by what is called in trademark law the “classic fair use defense.” It is well-settled that you may use a third party’s trademark in the ordinary, English-language sense of the word, and as long as it was not performing a confusing, source-identification function, there is likely no trademark infringement. For example, if I wrote a story about King Neptune and his trident and I titled it, “King Neptune’s Powerful Trident,” if I got sued by the owner of the “Trident” trademark (see http://tsdr.uspto.gov/documentviewer?caseId=sn71653425&docId=ORC20110315095116#docIndex=18&page=1), I would have a very good classic fair use defense in that lawsuit since I am using the word “trident” in its normal, English-language construction (see https://www.merriam-webster.com/dictionary/trident) and NOT TO INDICATE THE SOURCE OF THE BOOK.
Thus, if you have one book and it is titled, for example, “The Gardener was a Cocky Lad,” I invite you to ask: is your use of the word “cocky” performing a source identification function such that people would be confused into thinking that Hop Hop was the source of your book? Is it being used only in a classic fair use sense to describe the gardener in your story as cocky, as defined by Webster? (See https://www.merriam-webster.com/dictionary/cocky)
Now, trademark law is very fact specific, and each case must be decided on its relative merits. There may be some cases in which use of the word “Cocky” in a book title does create a likelihood that a consumer would be confused into believing that Hop Hop was the source of that book. But that is the test. Without that likelihood of consumer confusion, proving trademark infringement is very difficult. But please consider these factors if you receive an allegation of trademark infringement as to your book titles.
And two lawyers at a prestitious IP law firm have offered to work pro bono on a legal challenge.Below is a link to my challenge to the "cocky" trademark. #CockyGate— Kevin Kneupper (@kneupperwriter) May 7, 2018
The highly respected Trademark Trial and Appeal Board of the USPTO now has the issue before it and will decide whether the trademark of "cocky" should be invalidated!https://t.co/iNKCzPEtNR
UPDATE 5/30/18: Hopkins is doubling down: she has filed for preliminary injunctions and temporary restraining orders against Jennifer Watson, Tara Crescent, and Kevin Kneupper, claiming that Watson and Crescent are infringing her trademarks (Crescent is an author who uses "cocky" in some of her titles, and Watson is a member of the Cocky Collective, a satirical group that is producing an anthology called Cocktales: The Cockiest Anthology) and that Kneupper's petition to the USPTO to cancel the "cocky" trademarks is without merit.Amazon has responded to our request to say that they will not be removing titles from sale until this matter is resolved and have reinstated those they previously removed. We are still in discussion with counsel as to next steps and will report more as we are able. https://t.co/MCheapueye— RWA (@romancewriters) May 9, 2018
Jennifer Watson and the Cocky Collective are happy to announce a settlement has been reached in Hop Hop Productions, Inc. v. Kevin Kneupper, Tara Cresent and Jennifer Watson. The plaintiff has surrendered her trademark registrations for COCKY and has withdrawn the lawsuit.Authors can now use "cocky" in as many titles as they please, without fear of harassment from Hopkins. Good news indeed.
Disaffected clients claim they handed over sums ranging from $2000 to $12,000 since 2013 and as recently as late 2016 to entities including Love of Books Brisbane and Books Publishing Services Australia. The projects have ranged from historical research and commercial fiction to travel guides.And that's not all.
Another complainant is a Queensland debut novelist who unsuccessfully claimed a partial refund when the deadline for her fantasy fiction "was exceeded, my manuscript edited with no permission or tracking to show where the edits took place, no finished product and then I had to pay someone else to edit it again from scratch".
The writer says she is still owed $4000 and has not heard a word from McGregor since she was promised the refund in August 2016. At that time, she was not advised that McGregor was a bankrupt.
McGregor...dealt exclusively with a Melbourne high school whose parents spent $10,000 to produce a cookbook as a Christmas fundraiser in 2016.Several of McGregor's authors have won judgments from the Queensland Civil Claims Tribunal, although only one author appears to have been paid (and only partially).
The school, which does not want to be named, paid a $4000 deposit raised from local sponsors plus a further $6000 to McGregor's business, Love of Books Brisbane, to print 1000 copies of recipe favourites.
To date the fundraisers say they have not received a single copy of the book, which was to have been delivered four weeks after the supply of artwork and content in September 2016.
[A] Southport magistrates court convicted [McGregor] of three counts of dishonestly gaining thousands of dollars from three restaurants using fraudulent credit cards. She was handed a nine-month suspended sentence for what the prosecution said was a "calculated, fraudulent activity, not once but three times".In 2016, McGregor transferred the Love of Books website and client list to Ian Lewis, who is currently operating the business under his own business number and a slightly different name: Love of Books Australia-Wide. According to McGregor, this change was spurred not by thousands of dollars owed to multiple authors, but by "high continuous bullying in many forms...lasting over 3 years by a sacked employee and his associates, along with the take over of the businesses clients and personal details by a greedy commercial operator in conjunction." (You can read a much longer and even more self-serving version of this screed here.) According to The Sydney Morning Herald, Lewis has disclaimed responsibility for reimbursing McGregor's clients.
Acting magistrate Gary Finger described McGregor as "certainly naive to say the least" for her role in the complex fraud, in which she booked restaurant functions on fraudulent credit cards and then persuaded the restaurant owners to pay for non-existent florists and limousine services. A sobbing McGregor was told she would face jail time if she came before the courts again.
Participating teachers who submit their students [sic] work are eligible for one of three “Teacher’s Bonus” awards worth $500.00 apiece! Ballots are earned by the number of submissions made, so the chances of winning keeps [sic] going up!Each "ballot" represents 10 student entries, and teachers can submit up to 19 ballots. How to get lots of kids to enter your vanity anthology contest? Give adults an incentive to steer students your way.
12. Payment. Artist acknowledges that Company does not itself provide royalty payment. However, if accepted to one or more book, Artist will have the option to join Company's affiliate program, which is administered and run completely through the third-party site Refersion.According to the Affiliate Program FAQ, affiliates earn "approximately 25% of each sale you make (this includes 25% of the shipping fee as well)." Z suggests posting affiliate links on social media, websites, etc. (you can see a bunch of these pitches on Z's Facebook Community page), but it wants prospective affiliates to know that the best method is spam:
We are not a self-publishing company. We work as a literary agency that will endorse your book to be acquired by a traditional publishing company. We have inside contacts with major publishers and we know which of them are most likely to buy a particular material. So you won’t need to hire literary agents to promote your book to major publishers as we’ll do the endorsement for you.To take advantage of this amazing deal, all authors have to do is agree to pay for "at least 500 copies of your book (priced at $6 per book -- $3,000 total) to be distributed to physical bookstores across the globe for circulation".
We have done a preliminary endorsement to 50 traditional publishers and 6 out of the 50 have shown high interest in your book. However, they’re quite hesitant since your book is self-published and it has not been doing well when it comes to sales.
We have made a strategic plan for your book. Before we can endorse your book to traditional publishers, we will need to build your book’s credibility and your brand as an author. Because, as of now, you are still an unknown author. We can’t afford any flaws once we endorse your book.
With a self-publishing company, your book’s success depends on how much money you are capable of investing; which almost all self-published authors are unaware of how this delays the success of your book. Delaying your success is more practical for their business. Because, the longer your success is delayed, the more services they can sell to you. Your pocket will be exhausted until it becomes empty because that’s how they earn as a business and how sales agents get commission from-- the more services they are able to sell, the bigger commission they get. And eventually you get exhausted as well and so you get discouraged to move forward because you have invested so much effort, time and large amount of money and you haven’t seen any progress with your book yet. Which probably what you feel now. And that’s the worst thing that can happen to an author -- despair. Your book is too great to be left sitting online among millions of books available in Amazon. It’s like a grain in a bucket of sand. Almost impossible to be noticed. Our goal for your book is to make its success faster and that’s by directly endorsing your book to executives so you can land a contract with a traditional publisher.It's all lies, of course. There will be no 500-copy print run. No brick-and-mortar bookstores will be approached. No publishers will be pitched. Instead, once authors have ponied up the initial $3,000, BAP will do exactly what it pretends is not its business model: solicit writers to "invest" even more money in additional marketing services.
That's the message some writers found in their inboxes on Christmas Day, from a publication called The NY Literary Magazine:Congratulations!You have been nominated for the "Best Story Award".
In fact:Typing the first line of that quote + "NY Times" into Google reveals, yes, a real NY Times article - one that was published in 1992, in reference to the National Book Award & Pulitzer Prize. IT'S A TWENTY-FUCKING-FIVE YEAR OLD ARTICLE YOU GUYS. https://t.co/773JNrErRw— Foz Meadows (@fozmeadows) December 25, 2017
Just a teeny bit misleading, wouldn't you say?So, to recap: of the six pull quotes featured prominently at the top of the site, NOT A SINGLE ONE refers to the actual NY Literary Magazine Best Story Award.— Foz Meadows (@fozmeadows) December 25, 2017
Thread:— Foz Meadows (@fozmeadows) December 25, 2017
So, I've just been sent an email telling me I've been "nominated" for a "best story award," though the email doesn't list a specific thing I've written and it's not clear if this is for a novel or a short story. It also asks you to "submit your entry" by clicking a link.
I also got one of those emails from @NYLiteraryMag saying I’ve been nominated for an award but asking me to submit my story (plus reading fee) for an “award” that isn’t worth the paper its printed on. @victoriastrauss #writerbeware #scam— Percival Constantine (@perconstantine) December 25, 2017
Almost everyone in my writers' group got this email today, and almost everyone deleted the email.— Sandra Owens (@SandyOwens1) December 25, 2017
Raising hand for roll call. I eyeballed the thing and promptly went to Absolute Write to see if there was a thread. There was. :-)— Jules Jones (@bookfetishist) December 26, 2017
Absolute Write members got hit up, too.Just got this email over on my website from the NY Literary Magazine. Never heard of them. Will email you the addy and info.— Kim Baccellia (@ixtumea) December 26, 2017
We outsourced our marketing to an Asian service to help us spread the word about our Best Story Award contest. That is why authors received the marketing email from nyliterarymag.org (which is not our main website) on Christmas night, and at such an unexpected time in the middle of the night.I'll leave it to you to judge how plausible this is.
Unfortunately, it appears they chose the wrong terminology when inviting authors to our contest. We're very sorry that being told they were nominated for the Best Story Award offended, insulted, angered, or disappointed so many authors.
We have fired this agency and will monitor each marketing action any one of our team members does extremely closely from now on.
UPDATE 12/27/17: NY Literary Magazine has sent out another mass email, a cri de coeur of tragically injured innocence that again attempts to shift the blame (oh, those dastardly Asians), decries the evils of cyberbullying by mean folks like me, and proves once again that they just don't get it. They claim to be closing down for good. If you want to read the whole screed, here it is; if not, here's a taste.This is one of those “I’m sorry you were offended for no reason” apologies. It doesn’t change a thing. If anything, I feel much worse. pic.twitter.com/ya2x46srtu— Briana Morgan (@brimorganbooks) December 26, 2017
We are completely devastated and shattered from the extent of hate mail, comments, messages, tweets, lies and false accusations that were posted online which have totally blackened our name and destroyed our magazine - all based on a single email with one wrongly-worded sentence.If there were 10 paid jobs at NYLM, I'll eat my hat.
It's shocking how many people have posted blatant lies which weren't based on any facts and how many more people have shared, retweeted, and quoted those lies without ever checking to see if it's true or at least visiting our website....
This has been a heartbreaking Christmas.
We hope those people who spread the lies and worked so hard to destroy honest people's lives are now satisfied.
We have closed our contest. Refunded everyone who entered.
There will be no more free-to-enter contests. No more free-to-read anthologies.
No more articles. No more anything.
We had the heartbreaking task of firing our team of loyal, hard-working employees. 10 people are now jobless after Christmas.
While the investment required of our accepted authors to bring a book to the world-wide market varies based upon the intricacies of each book, all of our authors are fortunate enough to undertake the production, distribution and marketing of their book via a short-term, affordable monthly installment plan which is to be recovered by the author from book sale proceeds before we are entitled to any royalty compensation whatsoever!Writers be warned: this kind of coyness on pricing nearly always indicates excessive fees. I've heard from authors who were asked for anywhere from $3,500-$5,000 up front; for $495 up front plus installments of $295 per month for 10 months; for $950 up front plus installments of $380 for 10 months. Marketing is an add-on: for instance, $3,400 for a package that includes a "High-Definition Video Trailer", a press release, and a page on CFP's website. (This is not marketing. It's junk. It's not worth one cent, let alone four figures.)
The perpetrators have gone so far as to conduct job interviews by phone and gchat; to require signature on employment agreements, direct deposit, and tax forms; and to mail fake checks to individuals (in the hope that these “advances” would be cashed, thereby providing the perpetrators with bank account information and/or credit card information). To date, we’ve been contacted by more than 50 would-be victims, and the names of at least six of our top editorial leaders have been used.Be careful out there!
Unfortunately, scams like this one are very common in today’s landscape. We are actively working with law enforcement and are directing any intended victims to do the same. We are also making information available about the scam on our websites and in the magazine.
If you discover that you or any of our colleagues are being impersonated, please provide details to FraudAlert@AtlanticMedia.com, which will route the information to the IT department. Likewise, if you receive any inquiries from potential victims asking you to confirm the veracity of an email purporting to have come from The Atlantic, forward those inquiries to FraudAlert@AtlanticMedia.com. IT will connect with any would-be victims to advise them of the scam and to refer them to law enforcement.
Legaia is a book publishing company created to aid writers in seeing their works in prints. Whether you’re a beginner or a published author, and whatever is the genre of your work (memoirs, fiction, non-fiction, children’s book, or even poetry collection), it is always our pleasure to be working with you. Legaia has no reservations to anything in particular other than those that contradict what is in the terms and services. With the application of new technology and information, we are able to accommodate our clients and are maintaining this accessibility for a better relationship.The whole website is written like this, which should be a gigantic clue that things aren't kosher. If that's not enough, consider the eye-poppingly expensive publishing packages (which don't offer anything that's not available elsewhere for much less money), the hugely overpriced "online media publicity campaign" (based largely on cheap-for-the-provider services that can be sold at an enormous markup), and the nebulously-described "Online Retail Visibility Booster", which costs $6,499 and wants you to believe that's a fair price for something called a Booster Tool that supposedly gets you more reviews on Amazon.
This post was written in August 2017, and chronicles the abrupt disappearance of PublishAmerica/America Star Books. It has now been over six months since the company vanished. Writer Beware thinks it's safe to conclude that PA/ASB is permanently out of business.
Unfortunately, ASB didn't terminate contracts or return authors' rights. ASB books have vanished from all retailers' sites but Amazon, where they are still for sale, especially in Kindle editions.
Efforts to get law enforcement to look into the situation haven't been fruitful. Despite scores of complaints from ASB authors, many of whom paid for services that were never rendered, the Maryland Attorney General's Office considers the author-publisher relationship a business-to-business matter, and therefore not something their Consumer Protection Division is willing to investigate. The AG's criminal division hasn't even bothered to respond.
Currently, this is what Writer Beware is suggesting that ASB authors do (and keep in mind that we are not lawyers, so this isn't legal advice). As we see it, you have two options.
First, you can wait out the term of your contract. The one silver lining in this situation is that ASB contracts are time-limited, not life-of-copyright, ensuring that authors can get free if they are willing to wait.
Or, second, you can file copyright complaints with online retailers to try and get them to take down your book listings.
Amazon's copyright infringement reporting form is here: https://www.amazon.com/report/infringement. In the Additional Information box, state that ASB has gone out of business (you can mention that this has been confirmed by the Maryland Attorney General's office) and is no longer issuing royalty statements or making payments, and that continued sale of your book is therefore copyright infringement.
For Barnes & Noble, here's the procedure and contact info to send an infringement notice: https://www.barnesandnoble.com/h/copyright-policy. Don't bother with snail mail; use the email address that's provided. You can use this handy DMCA notice generator to produce a notice in the proper form: http://www.sfwa.org/2010/07/sample-dmca-generator-for-authors/.
I've heard from some ASB authors who've had success with this method. Keep in mind that Amazon may not remove listings from third-party sellers--but these sellers rarely actually have copies of the books they list. Please leave a commment, or contact Writer Beware directly, to let us know how you fare.