It is all too common of a nightmare scenario: a small business or individual receives a cease and desist letter accusing them of unauthorized use of a trademark and threatening trademark infringement litigation if use of the alleged trademark does not stop immediately. Sometimes these letters will include an offer to license the trademark in question.
It can be very scary, not to mention threatening to the on-going success of your business, to receive a letter like that. Many recipients of such letters are left at a loss – they don’t know what to do next. Below is some helpful guidance on how to handle a situation where you stand accused of trademark infringement.
Step 1: Get in Touch with A Trademark Infringement Lawyer
The first thing you need to do is take your cease and desist letter to an experienced trademark infringement lawyer. After your lawyer has an opportunity to review the letter, your attorney can answer any questions you have, such as:
- What are trademarks? What is infringement?
- Is the mark you are using too similar to the mark you are accused of infringing?
- Do you have a priority claim to the mark in question?
- Do you have to agree to the licensing offer that was made to you in the letter?
It is important to take your letter to an attorney as soon as possible so that you can get a full understanding of your current legal situation and so that you can discuss what legal options are available to you in your particular circumstances.
The legal options available to you will depend on a number of factors. Trademark rights exist in a number of different forms: rights based on common-law, rights based on state law, and rights based on federal law. Depending on the type of rights that are associated with the trademark you are accused of infringing, there will be different ways that you could respond to the allegations that are levied against you. Your lawyer will be able to discuss each option with you, and can help you choose an approach that is right for you and your business.
Step 2: Take Action and Respond to the Letter
Once you have discussed your situation with a lawyer, you should be ready to make an informed decision about how to respond to the letter. Perhaps you believe that you have a priority claim to the trademark based on your lengthy history of use of the mark in commerce. Or perhaps you believe that you are the rightful, registered owner of the trademark, or think that the mark you are using is not confusingly similar to the mark you are accused of infringing. In these situations, you would take action to contest the alleged infringement. You could also use mediation, or enter into negotiations with the accusing party to work out a deal where you can keep using the mark. If that doesn’t work, you can always seek resolution of the matter through litigation.
On the other hand, you might not be sure what you are infringing, and you can request clarification the matter from your accuser. You could also opt to take a wait-and-see approach by doing nothing. Finally, if you are absolutely in the wrong, you could stop using the trademark in question immediately before you make the situation worse.
Contact The Rapacke Law Group Today
If you need more information about trademark infringement or need help dealing with a cease and desist letter, contact an experienced and skilled trademark attorney at The Rapacke Law Group. RLG can be reached at 954-533-4396 or by completing this online contact form.