Did You Receive a Cease and Desist Letter?

Cease and Desist letters mean what they say! Cease means don't continue, stop doing something and don't do it again. If you receive one of these in the mail you know exactly what I'm talking about.

A Cease and Desist is a very common tool used by lawyers, business owners, professionals and really anybody who is in the commerce or business space to try and draw attention that you need to stop doing something because you are violating a law or maybe a right or privilege.

Now, what do you do if you receive a Cease and Desist letter? Cease and Desist letters can come in a lot of different flavors. They can be for a right, an action, they could be for defamation—there's a lot of different ways they are used. For our purposes, if you see a Cease and Desist letter on a trademark—that's what we're going to address.

What happens if you receive a Cease and Desist letter that you are using someone else's trademark? Now, Cease and Desist can come two ways. The nice way: “hey, cut it out, here's your warning.” The second way: “you know what you're doing, you're wrong, if you don't know what you're doing pay us “x” dollars.”

Well cease and desist letters are not the end of the world! They don't always have merit, but sometimes they do. It's really important that your specific facts are evaluated by a trademark attorney. What you should in fact do is always take them seriously. Read through it and read the allegations that they are making against you. Are they saying that you stole their brand offline, that you copied their Facebook, that you stole their placements in Google, or that you just have the same name as them? Read through it and understand exactly what they're saying.

Next, Google that business and make sure it's legit. There are spammers and there's some faulty Cease and Desists out there! Look up the business and the law firm that sent you the letter and make sure they're both legit. Now, when you look at the business and you determine that this is in fact a real business, look up and see if they have a registered trademark. You can go to the USPTO TESS system, type in the name of the trademark and see if it pops up as being registered in Live. It's always nice to verify that because you can see who owns it, how long has been active, and all those things.

Finally, I tell people who receive a Cease and Desist to determine if they are in fact infringing. You might have the same name but totally different business services. Let's talk about Dove chocolate and Dove body soap. They both have “Dove” but they're totally different lines of products and services. So, if I'm going to buy dark chocolate, I am not going to be confused that I need soap. Read through it, see what they're selling and what you're selling or doing, and see if there's, in fact, any blurred lines there.

After you've determined those things and you kind of get a grasp around what you're dealing with, it's a great time to reach out to an attorney. If the whole thing overwhelms you from the get-go, then, yes, you can reach out to an attorney right off the bat to help you work through that. I find the most value is that if you understand, as a business owner, what the allegations are being made against you first, then we can talk about them. If that's overwhelming, I'm always happy to break that down for folks and walk them through the allegations that are made. 

You should never ignore a Cease and Desist letter, that is my biggest warning! People ignore these and suits get filed. It gets very expensive very quickly! Our goal is to mitigate and to understand the claims made up front so I can step into a Cease and Desist situation—I can read it, understand it, try and negotiate it and make it go away. There's a lot of different strategies and tools we can do but it's much less costly, it's much less stressful, and it's really just a matter of a few conversations to get the ball moving in that direction.

If you ignore them, they will get worse!

I have many clients that are very small that never thought it would happen to them and it did. Unfortunately, coming in on the back end is much more problematic, costly, and stressful than dealing with it on the front end. Again, get your hands around what the allegations are, reach out to a qualified trademark attorney to help you work through this, and do not ignore a Cease and Desist!