Recently, I've been handling a lot of infringement matter (in regards to patents, trademarks, and copyrights... yes, all three) both on the offense and defense side, so I've been seeing a lot of cease and desist letters. What is a cease and desist letter? A cease and desist letter is a letter that is prepared by a party who has rights to a patent/trademark/copyright. The letter is sent to an alleged infringer of the patent/trademark/copyright to inform him or her of the rights holder's rights and to demand that the alleged infringer stop the infringing activities and/or pay damages.
In one of my defense cases, a client told me, "Hey, I talked to another lawyer and he told me that I should ignore this letter."
Two things wrong with that.
1. I don't know what lawyer would tell his or her client to ignore a cease and desist letter. This is something I would never advise.
2. Ignoring a little letter is one thing. But this cease and desist letter came with a draft of a complaint to be filed in a district court. Ignoring the letter would almost guarantee the complaint would be filed. And once you have a lawsuit filed against you, you are going to wish that you had responded to the letter.
Now you know at this point, you can't just ignore cease and desist letters. So what do you do? Should you call the lawyer who sent you the letter and try to talk things out? No. You should definitely not contact the opposing counsel. The first thing you should do is call a lawyer. I'm not saying this because I'm a lawyer. I'm saying this because you really do need a lawyer.
The main reason you need a lawyer is because you don't want to call the opposing counsel and say things that the opposing counsel can later use against you. You also don't want to expose any information that can weaken your position. Another reason for hiring a lawyer is so that you can be informed of your rights. Your lawyer can help come up with defenses if you have any. He or she can also help you come up with legal strategies to make progress to your case.
After you hire an attorney, you won't have to worry about communicating with the opposing party. All of the communication will be done through the attorneys in the case. All you have to do is to supply facts and answer your lawyer's questions to the best of your ability.
There will be a lot of negotiation after your attorney responds to the cease and desist letter. One or both of the parties will threaten to take things to court, but the truth is, no one really wants to. If you are the alleged infringer, one of the terms of the negotiation will have to do with you not infringing or limiting your activity so that you are not infringing on a patent/trademark/copyright. In some cases, you may have to pay money damages.
If you have received a cease and desist letter for patent infringement, it can be a little bit more complicated. You may end up executing a licensing agreement if you are in fact infringing on a patent. Or you can challenge a patent and ask for reexamination. Or if you have the means, you can purchase the patent in question from the patent holder.
Good news for you is that this matter will likely settle out of court, as most cases don't make it to litigation. But this will all depend on how you handle your case from the very beginning. So don't ignore cease and desist letters.