Receiving a cease and desist letter can evoke a flurry of emotions. Fear of litigation, defensiveness of your brand, concern for the future of your business, etc. But, taking a step back, it is important to understand what a cease and desist letter is, how it is used as a strategic enforcement tool, and what you should do if you are the recipient.
What is a Cease and Desist Letter?
A cease and desist (C&D) letter, or a “demand” letter, is correspondence, typically written by a lawyer on behalf of another business or person, who wants you to stop doing something that allegedly violates their rights. In the trademark context, the letter typically demands that you cease using a trademark that is identical or similar to a mark owned by the other party. When these letters are written by lawyers, they can often be several pages long and contain confusing legal references, making it seem that you are clearly in violation of the law and must accede to their demands . . . or else. Conversely, when the letter is written by a non-lawyer using a template letter from the Internet, the letter may not provide enough substance for you to adequately assess your legal position.
Regardless of who sent the letter, it is important to remember that the statements are merely allegations. That said, a C&D letter should be treated with the utmost concern until you are able to determine whether the alleged claims have any merit.
What to Do (and Not to Do) If you Receive a Cease and Desist Letter?
(1) Take a deep breath
(2) Consult with your business team
(3) Call a lawyer
(2) Respond out of impulse or emotion
(3) Destroy any documents
(4) Take to social media
(5) Ignore the letter
If you receive a C&D letter it is imperative to stay calm and act rationally. While you may have the urge to respond right away, anything you say in your response can be used against you if the matter proceeds in court. On the other hand, a lawyer’s response can be considered confidential “settlement negotiations,” and is typically inadmissible as evidence in court proceedings. While the goal is to reach an amicable resolution out of court, it is critical to preserve all potential rights and options.
On the other hand, you should NOT simply ignore the letter. Silence does not communicate that you take allegations of trademark infringement seriously, and can push the trademark owner (who may in fact have prior rights) into a more aggressive stance.
Engaging a lawyer to review the C&D letter, analyze the legal merit of the allegations, and respond accordingly is essential. A lawyer can help you evaluate your options in light of the legal realities, provide guidance on how to respond that will protect your interests and potential legal defenses, and help negotiate a settlement.