Q: when a lawyer sends a cease & desist order on a trademark infringment and threatens litigation, should one reply?
Also, If you cease and desist (even despite not agreeing with the demand) will they usually go away or still pursue damages (hard to prove and the onesss of the trademark owner, under $5000.
A:
A cease and desist letter must be taken very seriously. First of all, it puts the recipient on notice that her activities may be infringing upon someone else's rights (which means that if she were to continue such activities after the notice, that may be construed as willful infringer). And, obviously, is someone threatens to file a law suit, then they may just do it unless satisfied, especially if the letter's sender retained a lawyer already. Sending a cease and desist letter with demands is often the first step in a sequence of events that may ultimately lead to a law suit. Bottom line: ignoring a cease and desist letter is very hazardous.
Whether you actually should respond to a cease and desist letter and what exactly you should say in response depends on the specific facts of your case and the specific allegations in the letter. Whether the letter's sender will "go away" after receiving or response is also very case specific. There are simply too many unknown variables in this case at this time to offer any intelligent guess as to what the letter's sender may or may not do.
The best way to proceed when one gets a trademark-related C&D letter is to retain an experienced trademark lawyer who will need to carefully analyze each specific case and offer custom-tailored advice and guidance.
This information was provided for general informational purposes only. It does not, and is not intended to, constitute legal advice. I am not your lawyer. If you need an experienced trademark lawyer, please contact my office directly.
A: It would be wise to respond to a cease and desist letter, thanking them for bringing it to your attention and assuring the subject matter is being removed. You don't need to acknowledge or admit that there has been an actionable infringement, and you retain the option of asserting it was inadvertent. If there is not substantial financial damage (in excess of $10K), there is little likelihood that a court action will be filed.
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