A Cease and Desist letter — normally composed by a lawyer on behalf of a fee-paying client — urges another party to quit some particular activity.
Such a letter might claim, for example, that your use of a trademark violates that client’s intellectual property rights. So the letter tells you to halt the use of the trademark that identifies your business to the public.
Someone wanting to guard their rights in a trademark, copyright or other form of intellectual property, or someone who views another party as infringing on those rights, may send a letter either to avoid a lawsuit or to set the stage for one. The letter gives its recipient notice that the sender is considering legal action unless the recipient stops the offending activity.
In some cases, the sender hopes for monetary damages in order to be made whole again after the lost opportunities another actor allegedly caused.
First, know what not to do. Do not write back in alarm or anger. Do not grab the phone and call the office that sent the letter. These are easy ways to help the other side gather what it needs to back its allegations against you.
Don’t ignore it. Not responding can give the appearance of having no argument and possibly make your legal case more difficult.
As for taking positive action, you may have several ways to proceed. To avert litigation, you might simply do as the other party has requested.
But you might have too much invested in your activities and be unwilling to back down. How, then, do you defend your assets? Perhaps your correspondents are too late in acting to enforce their rights. Perhaps your rights, rather than their rights, actually have legal priority. If you or your organization used a trademark first, for instance, you might be able to demonstrate that your rights are being infringed on.
You might bring an invalidity case to a court that's likely to agree with you. Several factors will weigh into a court's analysis of the validity of infringement claims. Perhaps a court will find that your activities are not confusing the public about who sells what product or performs which services. The question is whether a court’s analysis will lean to your position or to the position of your opponent.
In any case, defending your position will involve several intricate law and policy issues.
Our office can help you defend your brand identity in view of a Cease and Desist demand — or in advance, before any claims arise. Though you have the power to defend your own rights in your brand, legal professionals can spare you expensive future problems by undertaking comprehensive searches, or by increasing your knowledge of trademark protections and how they apply to you.
The Tough Law Firm has experience with Cease and Desist letters and intellectual property disputes. We invite you to contact us to discuss your case and our possible role.
Note: The above information does not constitute legal advice. The reader is encouraged to seek legal advice from an attorney after establishing a lawyer-client relationship through a signed Legal Agreement.