Pixelrage.net

Have your registered copyrights or trademarks been used unlawfully? Is someone using your good name in commerce for their benefit on the web? Or, are you looking to take down yet another scumbag cybersquatter? Scare ‘em off with an effective cease and desist letter – you have every right to do so!

A Cease and Desist (called a C&D in short) is a notice that an intellectual property owner can send to ‘cease’ all unlawful activity being performed against it. In more human terms, it’s a legal letter you send to someone demanding that they stop doing what they’re doing, or else.

Of course, there can be two pretensions here: 1) You just want to scare the hell out of someone with a legal letter, and hope they’ll stop. If not, then you just give up and call it a day. Mission failed. 2) You want to scare the hell out of someone with a legal letter, and follow up with your promise of pursuing legal action.

Who are the kinds of idiots that you can send a C&D to? Scammers, spammers, content theives, cybersquatters, socialsquatters…anyone who is using your registered copyright or trademark without your permission, in a way that causes confusion (other people might think the false representation of your trademark are valid, and have come from you or your company), uses your business name in commerce (someone posing as you, using your good name to make themselves money) or is doing anything else that is obviously tarnishing your company name or property.

Note that I keep saying “registered” copyright or trademark. Technically, an un-registered copyright or trademark is still valid in the eyes of the law, it just has much less weight since it is subjective, difficult to prove, and has no legal backing like a registered version would. This is why I constantly urge people to register their business name properly.

In terms of the Cease & Desist letter, you’ll want it to sound as “frighteningly legal” as possible. Here’s the template I use:

Dear [CompanyName Representative] [Mr./Ms. Whoever],

Please be advised that I am writing on behalf of [My Company Name]. It has come to our attention that you are using the “[state the registered trademark/copyright]” mark, specifically found at: [give an exact URL of where the offense is taking place], is an infringement upon our registered US trademark, [State your 8-digit trademark ID number, or any other relevant number]. The rights to the “[state the registered trademark/copyright]” brand name are owned by [My Company Name], and this [trademark/copyright] was registered on [state the date it was registered].

The “[state the registered trademark/copyright]” mark is a widely known trademark for [whatever industry your mark has been trademarked/copyrighted under] that has been used in commerce since [state the date it first appeared in commerce]. My company has spent thousands of dollars advertising and promoting its brand name. This investment has generated widespread and substantial goodwill in the public acceptance for this trademark in the United States and worldwide.

The unauthorized use of the “[state the registered trademark/copyright]” mark infringes on our trademark registration, constitutes dilution of our registered trademark and is creating commercial confusion. Please relinquish the [list the domain name or social networking account name] to myself, the trademark holder. (or, state that you would like something taken down, if this is not in regard to an offending domain name or username).

Please advise me in writing no later than [input the date that is 30 days from today's date] that you have complied with this request.

(this is optional): In the event you do not act in accordance with the aforementioned, [your company name] will pursue all legal remedies.

Sincerely,

[Your Name]
[Your company name & all contact information]

Who should a Cease and Desist letter be sent to?

It depends on what event has happened. If you’re trying to get back your exact company name as an account name on a major social networking site (Facebook, MySpace, Youtube, Twitter), the C&D letter should be sent to their legal department. These sites always have a “help” section where you can search for “trademark violation” and find a contact link specifically for those instances. These sites do not waste time in responding to legal issues, and you should expect a response rather quickly with further information as to what happens next. Some of these sites will tell you to take the issue directly to the account holder (i.e., the account holder of MySpace.com/YourCompanyName). This move is dead wrong and unprofessional on their part, as they are the site owner. However, there isn’t much you can do beyond follow their instructions.

If you’re looking to send a C&D to an offending website, someone who has stolen your images or logo, or someone who is posing as you on the internet – send the letter directly to them by looking at their WHOIS information. If it is private or unavailable, you must contact their hosting provider through WHOIS, and send the C&D to them. They will most definitely respond to you. Another step you can take if the offender’s WHOIS information is hidden is to contact their domain name provider and demand that that the information is revealed. This is yet another case where you will most likely receive a prompt response.

Putting your money where your mouth is

Sending anyone a legal threat should never be a whim. If you’re going to threaten legal action, then most people (especially no-name content thieves working from their mother’s basement) will probably just give up and do what you ask. Others might tell you to piss off, and those are the ones where you’ll have to decide if legal action is worth pursuing or not. It really depends on how damaging they are being to your company. In those cases, a real C&D from your lawyer on their official letterhead might be the next best step.

What if the offender is international?

You’re pretty much screwed if the person offending your registered work is not in the same country as you. Unless you were able to afford the astronomical cost of registering an international trademark (which I doubt you’ve done), then you’re pretty much defenseless. The best you can do, in most cases, is to file a DMCA complaint and hope that the bad content gets taken off of the search engines.

In closing, a Cease and Desist letter is a good weapon you can use to combat content theft, or to simply make someone stop ripping off your intellectual property. It’s a way to potentially get back that social networking site username someone socialsquatted from you, or that cybersquatted domain name that’s profiting from the type-in traffic that was obviously intended for your company.