Top Mistakes to Avoid in an IP Infringement Cease-and-Desist Letter
The Legal Information Institute explains that a cease-and-desist letter is a “cautionary letter sent to an alleged wrongdoer describing the alleged misconduct and demanding that the alleged misconduct be stopped.” It can be a great tool to address intellectual property (IP) infringement, such as trademark infringement, copyright infringement, or patent infringement. To be truly effective, a cease-and-desist letter should be drafted by an experienced attorney. Here, our Florida cease-and-desist lawyer highlights the top mistakes to avoid when writing a letter to stop IP infringement.
Mistake #1: Poor Investigation, Weakly Supported Claim
A core goal of a cease-and-desist letter is to get the counterparty to comply with your demand without the need for additional legal action. For that reason, it is imperative that your cease-and-desist letter is strongly supported and well-presented. A cease-and-desist letter loses all force if the underlying claim is weak or inaccurate. Before sending any correspondence, confirm that you have a valid and enforceable intellectual property right. An experienced IP lawyer can help you put together a compelling, comprehensive cease-and-desist.
Mistake #2: Waiting Too Long to Take Action
Whether it is a trademark, copyright, or a patent, IP infringement claims are time-sensitive. A proactive approach is the best approach. An unjustified delay can seriously undermine your IP enforcement effort. Indeed, the longer infringement continues, the harder it becomes to quantify damages and to argue that your brand has been actively protected. Beyond that, in some cases, courts may even view prolonged inaction as tacit approval or waiver. Do not wait to take action. Remember, a cease-and-desist letter is often only one step in the IP enforcement process.
Mistake #3: Unclear Instructions for the Recipient
Another mistake to avoid when sending a cease-and-desist letter is providing the recipient with ambiguous or otherwise unclear instructions. To be the most effective, a cease-and-desist letter should give the recipient specific, actionable directives. Vague language such as “stop infringing” or “remove all infringing materials” is, by itself, not good enough to produce results. When possible, you should identify the infringing conduct precisely (product names, URLs, marketing materials, etc) and state the corrective steps required. It is also a best practice to include a specific deadline for compliance and a clear point of contact for resolution.
Mistake #4: Lack of a Strong Follow-Up Plan
Finally, before you send that cease-and-desist letter for IP infringement, you should develop a comprehensive follow-up plan. You cannot perfectly predict the response of the counterparty ahead of time. There should be a plan in place no matter how they handle the matter. You should be prepared for everything from immediate agreement to comply with your requests to ignoring the cease-and-desist to a counterclaim.
Consult With Our Florida Cease-and-Desist Attorney Today
At Perkins Law — Brand Protection, our Florida intellectual property lawyer has extensive experience drafting cease-and-desist letters. If you have any questions about cease-and-desists, we can help. Please do not hesitate to contact us to arrange your fully confidential case review. From our Boca Raton office, we provide IP law representation throughout South Florida.
