When you receive a cease and desist letter, follow these steps to keep your business running.
In a litigious society where intellectual property rights can make or break a business, cease and desist letters. Do you know what to do in the face of a demand to cease and desist?
You could panic, or you could follow these guidelines to resolve the situation, and keep your business going.
1. Consider compliance.
Many times, the subject of the cease and desist letter isn’t a conflict you’re knowingly creating. A relatively common phrase you used to describe your company, for example—“The No. 1 Dry Cleaner in Columbus”—might be something you can easily tweak. So the first thing you should assess is if you can comply to the request without harming your business, says Nasir N. Pasha, an attorney with Top Floor Legal, a California firm that works with small business owners.
“If the request is not troublesome or disruptive to the business, compliance may just be the easiest path,” Pasha says. “Most of the time, complying with such a request will not be construed as an admission or even be admissible.”
2. Bring the letter to your attorney.
If the demand is not something with which you’re willing to comply, it’s time to seek legal counsel. There are some types of request that have special procedures to follow, such as a copyright violation notice for something someone placed on your website, for example, Facebook or YouTube.
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3. Check your patent war chest (if you even have one)—and then let your attorney respond.
Once you’ve determined, with the help of your attorney, that the letter poses a legitimate complaint, you’ll want to see if you have any recourse of your own, says David Cotta, a partner in intellectual property at Edwards Wildman’s Boston office. “Evaluate your own patent portfolio,” he says. “Do you have any claims you can assert against the sender of the letter?”
Whether or not you have grounds for refuting the demand, you need to respond so the dispute doesn’t continue to escalate. In the end, mitigate damage. To do that, it’s important to make sure your attorney has experience in patent law, says Cotta. Cotta says, “A good patent lawyer is more likely to know how to help you avoid litigation and/or reduce the cost of settlement.”