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Trademark infringement: The elements of a cease and desist letter

Trademark infringement happens when an unauthorized party uses a service mark or trademark in a way that creates confusion, a mistaken purchase or deception -- causing customers to buy another brand without realizing it. Unfortunately, simply owning a trademark is not enough to maintain your exclusive trademark rights. You actually have to police your mark, or you could lose your rights.

For example, imagine your company is the Red Race Car Factory, and you build red race cars. Another company appears in a neighboring town and calls itself the Redd Racing Car Factory. Obviously, these two trademarks are much too similar, and the competing company's use of your name will cause damage to your brand. As such, it's time to take action to police your trademark.

As a trademark holder, your first course of action when policing your rights is to send a cease and desist letter. Your cease and desist letter should include the following elements:

  • A description of your trademark rights
  • A description of how the rights are being violated
  • A demand that the infringing party stop infringing on the rights within a specific amount of time
  • A demand that proof be provided by a specific deadline that the rights are no longer being violated
  • A warning that legal action will be forthcoming if the infringing party does not cease its infringement

You can draft your own letter without the assistance of a legal professional. However, legal training and expertise can certainly be helpful with a cease and desist trademark infringement letter. Ultimately, it will behoove you to know and understand the legal issues at stake in your trademark infringement case before you move forward with your plans. Just remember: Time is of the essence. The sooner you act, the better chance you'll have of protecting your trademark while preventing the dilution of your brand and the potential for economic damage to your organization.

Source: Entrepreneur, "What Entrepreneurs Need to Know About Trademarks," Brian Hughes, Jan. 5, 2018

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