The Intellectual Property lawyer’s Cease and Desist letter: Sometimes the hired gun’s paper bullets can’t pierce through the opponent’s armor.
Categories: Copyright Law,Litigation,Trademark Law,Cyber Law,Internet Law,Defamation
These scenarios are not so uncommon. Someone has copied the contents of your website, is making unauthorized use of your trademarks, is defaming you on the Internet, or has violated the terms of an Internet-related contract. What does the diligent person or business do? Hire a lawyer! Not just any lawyer, but a lawyer who specializes in Intellectual Property Law or Cyber Law. What does the lawyer do? Send a Cease and Desist letter! What happens next? Sometimes nothing! Perhaps, if you are a very lucky, the unlawful copyright infringement, trademark infringement, defamation, or breach of contract stops… or if you are not so lucky, things can gets worse!
There used to be a time when individuals and businesses could be easily intimidated by threats made by lawyers. For the most part, those days are gone. Think about it from the recipient’s point of view. You get a letter from a lawyer telling you that you are infringing on someone else’s copyright, trademark, or unlawfully defaming others on the Internet. Intellectual Property and Technology Law is very specialized, so this letter was not cheap to prepare. Of course, the lawyer wants to make the cease and desist letter as detailed and as convincing as possible so that maybe you will recognize the lawyer’s superior intellectual acumen and fold to the lawyer’s demands. These things are not cheap and by the time you receive the letter, the other party might have spent hundreds, perhaps thousands of dollars. To be effective, the message must be conveyed clearly, stop the unlawful conduct or face what could be a multi-million dollar lawsuit.
If you ignore or defy the letter, they would likely have to file a lawsuit to stop you. By now, they might have spent tens of thousands of dollars and you have spent zero. If you or your attorney can think of good ways to poke holes in their arguments, you have the financial upper hand. If your attorney prepared the letter and it was ignored, you must be prepared to go into a full battle.... at this point, you must be ready to pull all the stops and bring financial pain to you opponent. That's what we do...
I have seen large businesses with vast financial resources stall when facing opposition from smaller entities, just to increase the opponent’s legal fees. It may not be right, but it is real. Businesses know that if you decimate the other side’s resources or will to proceed, you will probably win regardless of the merits. Yes, Intellectual Property statutes provide for reimbursement of attorney’s fees and costs but first you have to prevail in the lawsuit. Can you spare tens or perhaps hundreds of thousands of dollars to get there? Can your opponent? It’s all about calculating business risk.
There is a place for cease and desist letters and sometimes they work. But if your attorney is sending one on your behalf, make sure that your lawyer has a strategy and a plan of what to do if it becomes apparent that the paper bullets from your hired gun are not piercing through your opponent’s armor. Whether your cease and desist notice deals with defamation, copyright, domain names, or trademark legal issues, effectiveness and results matter, you must be ready, willing and able to follow through and convey a clear message, comply or else...
Yeah, that's the bad thing: Big companies can paper you to death. I'd only thought about it in Discovery terms though. Interesting to see that it works even from the get go.
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On its own it my not resolve the matter, however, a cease and desist letter is a cheaper first step than a law suit. It also serves to put the offending party on notice, which could help to prove willfulness in a copyright infringement situation, which raises the ceiling on statutory damages.
[INAPPROPRIATE CONTENT DELETED]
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A cease and desist letter may be a cheaper first step than a lawsuit and may (arguably in a self-serving manner) help to prove willfulness, but is not a universal fix. One of my business parters hired a lawyer to write a cease and desist letter and the letter ended up published on the offending website without any reprisals. The lawyer had convinced him that a strong letter would make the other side stop. After the ridicule, the lawyer explained that he needed a $15K litigation retainer for the lawsuit and that the claim was probably not worth it.
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I didn't say it was a fix and the lawyer should never have asserted that a letter would make them stop.
AnYwAy, what about my law suit cyberlawyer?
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Larry, your case is obviously one of those where a cease and desist letter may be the cheap and adequate option. It sounds like you may need the extra money.
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That comment by Larry sounds like a novel trademark issue, this should be pursued further.
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That's a case for the Supreme Court if I've ever heard one.
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Thank you for explaining the dynamics of an IP lawyer or Internet Lawyer's cease and desist notice. I had a favorable outcome when my Cyber Attorney wrote to a person who stole the contents of my website. But I had to go through three lawyers and quite a bit of money to get there. Wish I had read your article before.
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“That comment by Larry sounds like a novel trademark issue, this should be pursued further.” Hmm I think you are right ...
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what is the role of ICANN authority regarding this.?
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Hey great information. I am always on a look of such a good resource.
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Great issue this you are talking about this will a great knowledge for all of us.
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Good post, but have you thought about Sometimes the hired gun’s paper bullets can’t pierce through the opponent’s armor. before?
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Nice information I always think about is issue you provide us really great information.
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Great work.. Thanks
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Good post.Thank you for explaining the dynamics of an IP lawyer or Internet Lawyer's cease and desist notice. I had a favorable outcome when my Cyber Attorney wrote to a person who stole the contents of my website.
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A collective good blog site, And the issues you have brought up are very interesting indeed.Thanks again.
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Thanks for bringing all this to my attention.I must reiterate on the explanation of the dynamics of an IP lawyer and or an Internet lawyer.I found it very informative and most useful.
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What are negative rights? Give me some examples. Is Intellectual property rights are negative rights?
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Really interesting !
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Thanks for the share!
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