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Please Don’t Write Your Own Cease and Desist Letter

Blowing up in your face.
When faced with someone stealing their patents or trademarks, some companies opt to craft their own little witty missive to the perpetrator. Sometimes these letters work. More often they don’t. The problem is that when they don’t, the letter writer typically miscalculates the blast zone by a rather wide margin. Like Wile E. Coyote after a failed bombing, the scrivener stands addled and smoldering, wondering how things could possibly gone so horribly awry.

What is the point?
Getting an infringer to stop infringing is merely one, lesser, goal of a cease and desist letter. The primary goal of a cease and desist letter is to set the stage for a subsequent lawsuit. By laying out your rights and the application of the law to the infringer’s acts, a properly drafted cease and desist letter puts the infringer on notice of the alleged infringement. The better positioned you are to win a subsequent lawsuit, the more likely the other side is to settle.

Why write your own?
An improperly drafted cease and desist letter is a lawyer’s dream. While bad cease and desist letters rarely accomplish their intended goal, their unintended consequences can keep your lawyers busy for years. Most clients assume that the worst thing that can happen from a bad cease and desist letter is that they will have to try again with an attorney. I find it strange that no one has the same perception about taking out their own appendix. Perhaps because not enough companies have legal insurance.

The Good . . .
A bad cease and desist letter, which convinces an infringer to stop infringing and drop a bag of pecuniary repentance, at your doorstep, may exist. The flying spaghetti monster might exist too. It’s just that I have never seen either one.

. . . the Bad . . .
Unintentionally undermining your legal position, by providing the infringer ambiguous statements the infringer can twist to its advantage, is common. Often time the only thing the infringer has going for it is a poorly worded cease and desist letter. Infringers will even argue that a poorly drafted cease and desist letter actually gave them permission to continue with their infringing activities. A bad letter can undermine your credibility with the jury, disclose your theory of the case (allowing the infringer time to reinvent its story), undermine licensing opportunities and encourage the recipient to start pulling an Ollie North on the which might otherwise have helped you.

. . . and the Ugly.
One of the worst results of a bad cease and desist letter is that YOU sued in the infringer’s home courthouse. Infringers can find many causes of action to throw into a lawsuit. The obvious choice is a request for a Declaratory Judgment from the court that they are not infringing. Depending
upon whom you send the cease and desist letter to, other claims may include misuse, defamation, interference with contractual relations and/or interference with prospective business advantage, just to name a few. The worst thing about the infringer suing YOU, is that you are no longer in control of the case. You can no longer decide to “just drop it” and go on your way. You are in until the infringer says you are out, which may be tens of thousands, hundreds of thousands, or even millions of dollars, later.

Run the Numbers.
There is no “standard” cease and desist letter. There arehundreds of different types posted all over the Internet. The type of infringement, the licensing potential, the history between the parties, the likelihood of litigation and the damages at stake all bear upon whether the cease and desist letter is going to be soft, medium of hard. Before you write a cease and desist letter, find out how much it will cost to have one professionally drafted. Next, estimate what a bad cease and desist letter can cost you and your company in time and money (You might even want to factor in the potential that upon receipt of your adroitly worded cease and desist letter, the recipient might attempt to take out their own appendix).

Brett Trout

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