Cease-and-desist letters, often referred to as demand letters, are a valuable tool in defending your intellectual property rights, including copyrights and trademarks.
Cease-And-Desist Letters for Copyright or Trademark Infringement
If, while policing your intellectual property, you notice that your works have been infringed upon, generally the first step is to send a formal cease-and-desist letter. This correspondence will outline the ownership of the work, highlight the infringing activity with specificity, and demand further infringing activities to stop.
Additionally, the initial letter demands damages for past infringement of your works. While demand letters are not “legally enforceable” it sends a clear message that you intend to protect your intellectual property and it puts the infringer on notice of their wrongful conduct. In doing so, if the infringement continues, you can seek additional damages from the court, as now their infringement is being done knowingly.
In short, this initial correspondence seeks to halt the infringement. Here’s how:
- A cease-and-desist letter can be a deterrent, especially for smaller businesses or individuals who may not be aware they are infringing upon your intellectual property or the legal implications of their actions.
- A cease-and-desist letter makes citation to relevant case law, demonstrating the seriousness of your claim.
- A cease-and-desist letter strengthens your position in any potential future negotiations or legal actions; it can trigger additional potential damages and satisfy statutory pre-suit notice requirements that may exist.
A cease-and-desist letter can be an effective and cost-conscious first step in addressing intellectual property infringement, while also potentially avoiding litigation.
How Powerful Is A Trademark or Copyright Cease-And-Desist Letter?
A cease-and-desist letter is not a court order and cannot force the infringing party to stop their actions; however, a cease-and-desist letter does signal that you are serious about protecting your intellectual property rights. It can serve as a “warning shot across the bow” that a federal lawsuit may be next.
Cease-And-Desist Letter Example:
A well-crafted cease-and-desist letter clearly informs the infringing party that you are the owner of the work in question, that you are aware of their actions, and that their actions are a violation of your intellectual property rights (copyright, trademark, patent).
A typical letter will also outline the specific details of your intellectual property (registration numbers, creation dates, prior use, etc.) and how the infringing party's actions violate those rights, often citing the specific law or regulation.
The letter should also clearly state your demands – and set a deadline for a response or confirmation of compliance with your demands. The demand typically involves stopping the infringing activity immediately – such as removing copied content, using a similar logo, or manufacturing a patented product – as well as compensation for past damages sustained as a result of their infringement. You may also demand that the infringing party destroy any infringing materials they possess.
Finally, the letter should convey your intent to protect your intellectual property rights by outlining the potential legal consequences of not complying with the cease-and-desist, such as a federal lawsuit seeking damages and injunctions.
Additional Legal Remedies to Defend Your Intellectual Property
If the infringing party does not respond – or respond favorably – to your demand letter, you have several options for additional legal action, depending on whether your IP is registered or not.
Here are a few additional legal remedies your attorney may recommend to stop copyright or trademark infringement and recover potential damages:
- DMCA takedown notices for copyright claims: Any individual or entity with a valid copyright claim on a work can submit a takedown request to online service providers or social media platforms. Internet Service Providers and social media platforms are required by the Digital Millennium Copyright Act (DMCA) to remove access to alleged infringing material upon receipt of a valid takedown notice. This can be a powerful tool in stopping the infringement.,
- File a federal lawsuit: If you have registered copyrighted work with the U.S. Copyright Office or a registered mark with the United States Patent and Trademark Office, you can file a federal lawsuit for copyright infringement and request an injunction to stop the infringing activity immediately. Similarly, if you registered your trademark with the United States Patent and Trademark Office (USPTO), your trademark is protected by law in all 50 states. If you prevail, the court may award monetary damages and you may be entitled to reimbursement for the legal expenses incurred during the lawsuit.
- File a state lawsuit: Texas offers common law protection for your trademark, meaning that you do not have to register your trademark with the state to protect your rights. However, common law trademark protection is generally limited to the local or regional area where the mark is used and has become associated with your goods or services. Registering your trademark in Texas with the Secretary of State gives you statewide protection and the ability to seek statutory damages and attorney's fees in case of legal action.
Intellectual property that is registered as a copyright or trademark generally provides greater enforcement capabilities, including statutory damages in addition to actual damages.
Move Quickly to Stop Copyright or Trademark Infringement
As a business owner, executive, content creator, or social media influencer, you have a right to protect your intellectual property from infringement, and you should move quickly. If you fail to enforce your rights or enforce them inconsistently, the courts may call into question the economic value of the copyrighted work or trademark, weakening any claims for damages.
Call (713) 909-7323 or contact us online to schedule a consultation with our team about using cease-and-desist letters to stop copyright or trademark infringement.
