It is a jarring feeling to be accused of stealing someone else’s ideas. But it happens more and more often today, as businesses circle their wagons to defend their intellectual property.
We see it happening in virtually every business. It occurs very visibly in entertainment and publishing, but it also happens to writers, manufacturers, designers, software companies – even chefs who seek to protect their latest concoction.
How you learn you are in trouble
You may find out via the U.S. mail, in the form of a cease and desist letter. You may get a bill, with the implied legal threat. You may get an angry phone call, accusing you of a crime. Or you may discover you are being sued.
Sometimes the infringement is deliberate. Other times it is real but ignorant of having broken the law. Sometimes it is an effort to scare you into quitting the business. Sometimes it is quite innocent, a case of mutual invention.
Taking charges seriously
However you learn of the charge, unless it is an obvious scare tactic, you should take it seriously. People protecting their business ideas take it very personally, and see you as a threat to their success.
This is one situation where a knowledgeable attorney can actually make your life easier. Certainly, if the accuser is communicating through a lawyer, you would be advised to respond the same way.
The first thing we do with worried clients is to study the situation and determine its seriousness. What is the other party claiming, exactly? Is the claim just, or is it just a fishing expedition?
Most threatening letters want you to resolve the problem, so both sides can avoid the risk and expense of going to trial. Rather than quivering in fear and capitulating, you need to assess, with the counsel of your attorney, what game is being played, and what is the best response you can make.
Sometimes the accuser is accusing you as a way to warn similar copycats that they are serious.
Sometimes the letter is busy-work from the accuser’s lawyer. They are showing their client or employer that they are paying attention, and earning their retainer. This isn’t much comfort to you, but it helps to know where the accusation is coming from.
Apologies beat combativeness
Many times the infringer realizes he or she really is in the wrong. An “I’m sorry and I will stop doing this” letter can put the matter to rest.
Sometimes the cease-and-desist letter is an empty threat. If they can bully you into an action that benefits them, it was worth sending the letter. But if you ignore the letter, they may forget you even exist.
Then there are times when the letter is dead serious, and you appear to be in real trouble. Even then there are defenses you can mount that minimize the harm to yourself. The accusation may simply be false, or a misunderstanding.
In many of the cases we see, a lawsuit is the last thing the accuser really wants. A good response from their perspective is a promise from you to stop. Maybe they will allow you to continue after paying a licensing fee.
It is generally a bad idea to be belligerent. This only fires up the accuser to take the dispute to the next level.
Every case is distinct and different. At our office we have seen every kind of charge – and we have usually found a way to blunt the accusation. We invite you to call our offices and describe your situation.