It arrives in an unassuming envelope, usually with the return address of an unknown attorney’s office. It may come by certified mail, look like junk mail, or come across as something you barely notice at all. Opening this letter and reading the contents may send your mind reeling. “What did we do wrong?” or “How are we being accused of this?” might run through your mind. For some, the threat of legal action may even cause mild panic. And while a Cease & Desist letter is not something to be ignored, it’s also not something that should cause business-halting anxiety.
It’s not uncommon for a business to receive a letter from a third party claiming that it has infringed their trademark rights. This party is sending the letter to demand payment for damages and attorneys’ fees. Your business is required to respond. Simply ignoring the letter will make the situation worse, no matter how much you might want to toss that letter in the recycling bin.
The first step upon receiving this letter is to relax. Trademark law doesn’t dictate that federal officers show up at your door with an arrest warrant, and there is no immediate court date. Instead, understand the Cease and Desist for what it is… an invitation to negotiation. This is where your attorney can be most valuable, and it’s critical to talk to him or her right away, to determine what your next steps are.
It’s important to note that in some cases, due to the litigious nature of some plaintiffs, there may not be any infringement. The letter could merely be a scare tactic – an attempt to force payment of some amount of money out of fear of a lawsuit. Or, there may be no infringement. In fact, that party could be the infringer.
For these reasons, any time you receive a Cease and Desist letter, contact your attorney immediately to engage their assistance.
Things you should do:
You will respond better coming from a calmer place.
- Acknowledge receipt of the letter.
Whether that is responding by email or signing to receive the certified letter, it’s best to acknowledge receipt, so don’t hesitate to do ONLY that.
- Contact a trademark attorney.
Seek the advice of an experienced attorney to navigate the potential pitfalls that come with a trademark dispute right away.
Things you should NOT do:
- Immediately stop all business activity.
Do not allow this letter to negatively affect your business or income. Run your business as usual, unless your attorney advises otherwise.
- Ignore or destroy the letter.
Sticking your head in the sand does not solve the problem at hand. Deal with it as you would any important business correspondence.
- Take any action that could waive your rights.
Other than acknowledging that you have received the letter, you should not have any other communication about it, or take any action regarding it, without the advice of your attorney.
If you have received a Cease and Desist letter and are unsure about next steps, please contact our office for more information or to engage our help.