Chances are you have seen rumblings of creative, even (dare I say) funny cease-and-desist letters, particularly those aimed towards trademark or copyright infringement, popping up in the news. You know the ones: an actor playing a town crier pops in on a local brewery to read a cease-and-desist letter in ‘ye olde English; or a popular fast food joint sends a pun-filled letter to a local brewery demanding they cease from using the restaurant’s trademarked image. These kinds of cease-and-desist letters, especially in the copyright and trademark context, are becoming all the more prevalent.
But is this the best way to demand an entity stop infringing on your trademark? As anything goes, such a strategy can have very real pros, and very real cons.
First, a little background into what exactly cease-and-desist letters are, and the purposes they serve. Generally, a cease-and-desist letter is a notice to the entity receiving it that the activity they are participating in may be illegal, or more particularly in the case of copyright and trademark infringement, that their activity infringes. Although a cease-and-desist letter has no immediate legal effect, the entity receiving the letter may not use the excuse that it did not know the sending party believed its behavior was illegal, as the letter put it on notice of its potentially illegal activity. Notably for the sake of copyright and trademark infringement, if the entity persists in its illegal behavior after receiving the letter, such notice may aid in proving intent, willfulness, and bad faith.
Although cease-and-desist letters are often thought of as sternly worded letters from stuffy attorneys, creative and humorous cease-and-desist letters can have real benefits for a company. As alluded to above, creative cease-and-desist letters have received especially beneficial PR as of late. As companies become more and more of an open book in this age of social media and online news, crafting creative ways to assert a company’s legal rights helps show that the company is amiable, fair, and all in all fun. Not to mention, such exposure can turn in to free and hopefully beneficial press.
However, creative cease-and-desist letters must be drafted the right way, as they also carry credible risk. For one, if the creativeness is taken over the top, the recipient of the letter may not take it seriously. Ultimately, cease-and-desist letters are meant to be taken seriously and cause the recipient to stop its infringing action—if the recipient thinks the letter is simply a joke, it may continue on engaging in its infringing behavior. In that same vein, if the humor placed in the letter misses the mark, or muddles the issue, the recipient may have an argument that it was in fact not on notice of its allegedly infringing behavior. Finally, straightforward cease-and-desist letters are often quiet and discrete. By issuing a humorous letter, a company is taking a risk and opening itself up to potential public scrutiny. However, if a company is able to strike that perfect balance between informative and humorous, it is potentially a worthwhile risk to take.
All in all, creative and humorous cease-and-desist letters, if done right, are largely beneficial in the copyright and trademark infringement context. If you decide to send such a letter, make sure to do it right, and of course try to have the wittiest attorney you know write the letter for you (although some say witty attorneys are few and far between).