Drey Cooley, a St Louis attorney, has this good article on the art of trademark cease & desist letters (C&D letters) in the recent Missouri Bar Journal. His article is good food for thought for attorneys (including myself) who represent clients in defending or challenging copyrights, trademarks, or other IP – attorneys who often write or review C&D letters. Among other exhortations, he encourages attorneys to think about (1) elements of federal and state trademark infringement to see if the use is infringing, and (2) the letter or email’s form, style, tone, and substance. He rightly notes that C&D are “an essential tool to cost effectively resolve issues and avoid litigation.” To write a good C&D letter for each client, he recommends asking questions about 9 issues including: (a) client goals, (b) infringer’s size, (c) infringer online, (d) intentional (or accidental) infringement, (e) strength of client’s trademark, (f) strength of client’s infringement claim, (g) infringer’s investment in the mark, (h) infringement widespread (or not), (i) infringer’s past infringement history, and so on.
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(c) 2016, Stephen M. Johnson, Esq.