In my last blog post, we discussed the risks involved in using the trademarks and copyrighted works of others on your website and how to avoid infringement. But, what happens if you have already gotten yourself in trouble and are hit with the dreaded cease and desist letter? Whatever you do, do not ignore the letter and do not panic.
The fastest way to get sued for infringement is to simply ignore a cease and desist letter. You are already on their radar screen; it’s not just going to go away. Worse yet, if you keep using the trademark or the copyrighted work, you are now on notice and could be held liable for willful infringement and the punitive damages that come with that finding.
Also, it is important that you have an attorney contact the other side. If you say too much, it could be used against you later on in a lawsuit.
The first thing you should do is contact an attorney immediately. The lawyer should then contact the other side and acknowledge receiving the letter and that a response will be forthcoming.
When your attorney contacts them early on to discuss the letter, you may be able to negotiate a settlement with little or no payment to the other side. You may even be able to negotiate a license to continue using the trademark or copyrighted work.
The next step is to get a written opinion from your attorney. The attorney will analyze the validity of the other side’s trademark(s) and/or copyright(s) and tell you whether they have any rights and to what extent, if any, you have violated those rights. The opinion will also include a plan for how to approach the other side and to resolve the dispute in a cost effective and timely manner.
Often times, these matters settle quickly and without any lawsuit if handled correctly. Sometimes, litigation is necessary, either when the sides cannot agree on the price for the infringement or whether there is any infringement in the first place.
The bottom line is: to decrease the risk of an expensive lawsuit, you should contact a competent intellectual property attorney rights away and address the problem head on.
The Law Office of Joshua A. Burt is very experienced in handling complicated copyright and trademark infringement matters. Contact the firm to discuss your particular intellectual property concerns and to set up a free consultation.
Disclaimer: The above post should not be considered and does not constitute legal advice. You should not rely on any of this advice because each case is fact specific and could be subject to different local, state, and federal laws. No attorney-client relationship exists based on this post.