When your trademark has been infringed, often the first step to seek a resolution is to send a “cease and desist letter.” A cease and desist letter generally notifies the other party of the infringement concerns and demands they stop infringing the trademark.

That said, cease and desist letters can come in a lot of different shapes and sizes. Before sending a cease and desist demand letter, one should consider:

  • is this a real infringement concern?
  • what will be the options if the letter is ignored?
  • what will happen if the letter is made public?
  • could there be a ‘Streisand Effect‘?
  • is a letter the appropriate action (vs. a phone call, filing suit, or something else)?
  • should the letter be strong or gentle?
  • should the letter be sent via email, mail, certified mail, or overnight delivery?
  • is there counsel to address the letter to?
  • are you prepared that the receiving party could file for declaratory judgment of non-infringement?
And, the most important consideration before sending a cease and desist letter:
  • are you sure that the party you are writing to does not have priority and cannot respond by asserting a claim against you?

Each situation is unique, of course. That is why the advice of experienced counsel if strongly recommended and tremendously valuable.

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