June 29, 2010
Steps to 'Internet-Proof' Your Cease and Desist Letter
[Post by Venkat]
I posted a ways back at Avvo's blog about how the internet increasingly affects litigation by shining the light on abusive lawsuits or those that overreach. I didn't mention something related that has become fairly common, and that's the mockery of cease and desist letters by the internet. It seems like not a week goes by without someone sending an ill-advised cease and desist letter that the internet enjoys a good laugh over. Last week's example was brought to you by the National Pork Board and its lawyers, who decided that ThinkGeek's "Canned Unicorn Meat" (released on April 1) infringed on NPB's "The Other White Meat" family of trademarks. (ThinkGeek: "Officially Our Best-Ever Cease and Desist.")
D.C. Toedt has a post titled "Cease-and-desist letters: Five ways to keep your client and yourself from looking foolish" that provides some helpful steps you can take to avoid NPB's plight:
1. Think about whether sending the letter is such a good idea.
2. Consider what the other side might do for a counter-attack.
3. Skip the histrionics – just the facts, ma’am.
4. Never threaten to sue – when the time comes, just do it.
5. Don’t set a compliance deadline, nor demand a written response.
That's pretty sage advice that people often seem to ignore.
Cease and desist letters should also be relatively short and to the point. You obviously want to be right on the facts and the law, but rare is the opponent who will be cowed into submission by extensive citations coupled with wonderful lawyerly prose. If it does not achieve compliance, it ends up being a way to sink a bunch of lawyer time into a letter that does not result in much. Often, a cease and desist letter to a lawyer becomes what a confirmation hearing is to a senator: an opportunity to drone on. (Cease and desist letters often serve other purposes, such as putting the other side on notice, revoking an implied license, etc.) On the other hand, a well-written response could sway the other side. Since the party who is sending the cease and desist will almost always see the response, a thoughtful response is an opportunity to demonstrate why the demands in the letter are out in left field.
Increasingly, lawsuits play out in the public arena, so it's also worth looping in the PR/messaging folks at the early stages (i.e., before you send the letter). If the recipient posts your letter and mockery ensues, you probably skipped one of the steps outlined in the post, but in any event, it would be helpful to have something articulating your rationale and position already out there or ready to go.
Of course, when all else fails, you could always try to assert a copyright in your letter (to prevent its reproduction), but that's just inviting further ridicule.
Added: an alternative via email: "don't include anything mockable in the cease and desist letter." That works as well.
Posted by Venkat at June 29, 2010 08:27 AM | General