How to Respond to Cease-and-Desist Letters
A demand letter. A nastygram. Whatever you want to call it, anyone who works with intellectual property long enough will likely run into a cease-and-desist letter at some point.
Receiving a letter accusing your business of wrongdoing and threatening legal action is no doubt unsettling. But if you receive a cease-and-desist letter, don't panic. Here are some tips for how you should react and begin to formulate a game plan.Acknowledge Receipt, But Don't Respond
When you receive a cease-and-desist letter, don't make any quick, rash responses. Take a deep breath, and read the letter carefully. Take note of any date given as a deadline for response. In any case, it is ok to send a response which only acknowledges receipt of the letter. Your response should absolutely not include any substantive information regarding the claims in the letter, your intellectual property or any possible explanations or defenses. Say nothing other than the fact that the letter was received and what date it was received.Contact an Intellectual Property Attorney ASAP
If you are worried about saying too much when acknowledging receipt, don't even take that step before contacting your attorney. You can show the letter to your legal counsel and work with them to evaluate the merit of the claim and decide to systematically come up with a strategy.Begin to Review Your Intellectual Property
Begin to take stock of your intellectual property. Begin to audit your patented or otherwise protected information, finding any and all intellectual property that could be affected by a possible dispute.Consider a Formal Opinion to Avoid a Willful Infringement Claim
A good intellectual property attorney can give you a formal opinion about your intellectual property case. When facing an IP claim, it is important to evaluate whether your company is at risk for a willful infringement claim. By obtaining a formal opinion, your company can begin to mount its defense that any IP violation was not willful.Carefully Evaluate Your Case. Is it Worth Litigating?
One thing to carefully consider is whether facing a long, drawn out intellectual property lawsuit is worth it. Intellectual property litigation is very expensive. Entering an intellectual property legal battle is a big decision. Your attorneys will be able to evaluate your chances of winning as well as your potential liability. This way, you will know whether engaging in full-blown litigation is a good idea or a costly mistake.Check Your Document and Data Records in Anticipation of Litigation
If you anticipate IP litigation, your company will need to become extra aware of documents, data and records. With the possibility of document review on the horizon, it is vital to make sure that your record keeping is all up to snuff and that your regular recordkeeping policies are being followed.Look for Counterclaims or Other Responsible Parties
The last suggestion is to think of ways that you might be able to fight fire with fire. Evaluate whether the company who sent your cease-and-desist letter have any possible IP violations that could lead to a counterclaim. You can also begin to investigate whether there are any third parties, e.g. suppliers or co-manufacturers who might be able to take the blame in this IP dispute.
If you've received an intellectual property cease-and-desist letter, don't delay. Call your experienced Washington D.C. IP attorney immediately to begin to mitigate your risk.