Writing an Effective Cease and Desist Trademark Infringement Letter

When you own a trademark, sometimes you will find that another person or company is infringing on your rights by using your, or a substantially similar, mark, without your permission.

In that event, you might wonder what rights you have or what you can do to stop the infringement. Even if you decide that it would be better to let them use the mark, with regard to trademarks, you must also try to prevent trademark dilution, which could cause you to lose protection. In either event, if your legal rights have been violated, you can sue the infringer. However, because this is costly, the first step that is usually taken is to send the infringer a “cease and desist” letter, informing them of your rights and telling them to stop. 

However, for the letter to be most effective, it must be clear that you are legally entitled to the action you are requesting. It should do this by setting out the facts and the law in a clear, calm and easy-to-follow manner. If there are defenses to the claim, they should be rebutted, so that if the letter is received by a person who feels that they have a valid defense, for example, fair use, they will not simply ignore your letter. You may also discover in the process of writing the letter that you would be better off not sending it, if their defense is strong enough. If you fail to do this, the other party might turn your letter into a joke, resulting in unwanted negative publicity. Finally, you should provide a deadline for response and describe what actions you will take if the infringer does not respond in a timely manner, for example, filing a lawsuit.

You should be aware that even if you send a well written, legally strong cease and desist letter, you may still receive a sarcastic response letter and negative publicity campaign.

You might also receive a response which includes facts that you were not aware of, for instance, that the trademark predates yours locally and is therefore valid. You may also receive no response at all. In those events, you will need to decide whether to proceed in filing a suit, with its attendant costs and potential publicity, or whether a settlement can be reached and to continue trying to communicate with the infringer.

However, if your letter contains the above elements, you stand your best chance of receiving a positive response.

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