In this article, we’ll explain why and how you should send a cease and desist letter if someone is infringing on your trademark. A cease and desist letter notifies a party that they infringe on your intellectual property and demands that they stop. The goal of a cease and desist letter is to end the infringement without resorting to a lawsuit.
A cease and desist letter for trademark infringement is usually most effective when sent by an attorney on your behalf. Demand Letters can connect you to an attorney that will prepare and send a cease and desist letter for IP infringement for a low flat rate.
What Constitutes a Valid Trademark?
A trademark is a word, phrase, symbol, and/or design used to sell a good or service that distinguishes you from your competitors. Trademarks include things like brand names, slogans, and logos.
Unlike other forms of IP such as patents and copyrights, trademarks do not expire after a set number of years. Trademark rights come from actual use and can theoretically last forever as long as you continue to use the trademark. A trademark registered with the U.S. Patent and Trademark Office (USPTO) can also last indefinitely, as long as you keep current with the necessary filings and fees.
Becoming the rightful owner of a trademark doesn’t necessarily require registration. A “common law” trademark can arise when you use the mark in the sale of goods or services without USPTO registration. Having a registered trademark, however, confers several advantages:
- It notifies the public of your claim of ownership,
- It provides a presumption that you own the trademark nationwide and
- It grants you the exclusive right to use the trademark in conjunction with the goods or services described in the registration.
For these reasons, it’s generally a good idea to register a trademark that is valuable for your business.
Anytime you use your trademark, it’s recommended that you use a trademark symbol. You may have seen the symbol “®” after a trademark—that signifies the trademark is registered with the USPTO. For unregistered common law trademarks, you can use the symbols “TM” for goods or “SM” for services
Why Is Sending a Cease and Desist Letter a Good Idea?
If someone is misusing your trademark, it’s a good idea to send a cease and desist letter for a few reasons. The most obvious reason is that you simply want the infringing party to stop at once. The letter also can serve as notice to someone who may have been unaware that you owned the trademark.
Another important reason to send a cease and desist letter, however, is that as a trademark owner, you not only have the right to monitor and enforce your trademark rights, but you actually have an obligation to do so. If the trademark becomes widely used and you remain passive about enforcing your right, it can lose its status as a distinctive protected trademark.
Finally, sending a cease and desist letter can be an effective way to stop someone from using your trademark without resorting to an expensive lawsuit. The outcome of enforcing your trademark through legal action can rarely be guaranteed to work out in your favor. Legally proving that your trademark was violated can get complicated and is not always cut and dry.
Most people want to resolve their disputes without paying for a protracted legal battle. The recipient of a cease and desist letter may decide to just stop using your trademark even if they have an arguable case to avoid the expense and headache of dealing with a legal fight. A cease and desist letter allows the infringing party to resolve the situation without any further escalation amicably.
What Is in a Trademark Cease and Desist Letter?
The purpose of a cease and desist letter is to get the recipient to stop their infringing activity right away and avoid any further conflict between the parties. A cease and desist letter for trademark infringement typically will contain the following elements:
- A statement of the owner regarding the trademark in question and a description of the trademark and its uses.
- A description of how the recipient is infringing on your trademark.
- A demand to immediately stop using the trademark and removing it from any prior usages.
- A demand for remedies, such as monetary payment.
- Potential consequences if your demands aren’t meant, such as the filing of a lawsuit.
A cease and desist letter should carry a business-like tone—even though your emotions may be running high, it’s best to leave them out of a letter. The letter should also attempt to be concise, factual, and drive immediately to the points you want to get across. The letter can be sent by email or physical mail. If by physical mail, a traceable method such as a certified mailing should be used.
What Comes Next?
In an ideal situation, the recipient of the cease and desist letter will immediately stop violating your trademark. The recipient may also provide a counteroffer, possibly offering terms for usage of your trademark or another compromise. If the recipient refutes your claim to the trademark or completely ignores your request, you have a few options at that point.
You can decide to file a lawsuit to enforce your trademark but should carefully consider whether the cost of a lawsuit will actually be worth the expense. A lawyer with trademark expertise can help determine how strong your case is. That will help you run a cost-benefit analysis to determine whether it makes financial sense to file a claim.
You may also just decide not to pursue the matter any further, which is a perfectly acceptable option for many people. Although not ideal, the cost of sending a cease and desist letter may have been as far as you were willing to go. A lawsuit can be time-consuming, expensive, and generally unpleasant—it may simply not be worth your time or money to continue pressing the matter. In such a case, the cease and desist letter will have served its purpose as an economic attempt to resolve the situation in your favor.
How Can I Find a Lawyer To Send a Cease and Desist Letter to Stop Trademark Infringement?
If someone violates your trademark, you can do something about it without going broke by paying legal fees. Demand Letters can connect you to a lawyer that can draft and send a cease and desist letter on your behalf. With Demand Letters, you are only charged a single flat rate with no hidden fees or deposits. You get transparent pricing and speedy service from a licensed attorney. Getting started is easy—just click on the link below and fill out the questionnaire.
