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Sending a Shot Across the Brow: Drafting An Effective Trademark Demand Letter
You’ve worked to come up with a brand that you are proud of that embodies the promise your company makes to consumers with its products and services. You registered your trademark and worked to infuse the mark with your brand message. But then you see someone else using a similar mark that seems too close to your own. “They can’t do that,” the CEO tells legal. “Make them stop!”
There is a lot to go into concerning enforcement of trademark rights and the requirements to carry a claim of infringement under the law. But short of all that, what is seen as a simple demand letter should be carefully considered before you send such a shot across the bow. Sometimes your fire will be returned, and you have to be ready for it.
First, all the i’s must be dotted and t’s crossed to be sure that you actually have the senior rights in your mark. While this Johnny-come-lately may be new to you, it may have actually preexisted you and have seniority. You just don’t know what you don’t know and it is imperative to confirm seniority before making any contact concerning the mark. After all, if you are the junior user, your letter will likely be met with something to the effect of “thanks for letting us know — we agree there is confusion and you need to immediately cease use of your infringing mark.” In that case your metaphoric pounding of the table concerning the likelihood of confusion between the marks is not going to do you any favors. Trademark use investigation services are a great tool to make such a determination.
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