Threatening Legal Letters

Cease & Desist Letters

 

If You Have Received a Threatening Legal Letter

You may have received a letter, e-mail or telephone call that threatens legal action if you do not give up your domain name. These are often referred to as cease-and-desist letters or demand letters.

The letters are usually complicated and written in legal jargon that is virtually incomprehensible to most people. The letter may allege that you have “violated the anti-Cybersquatting laws" “violated trademark laws” or “infringed on trademark rights.” The communication may quote from the anti-cybersquatting laws or from legal decisions in order to try to convince you that you are violating the law.

Furthermore, the communication may claim that fines and penalties can be imposed on you in the amount of several hundred thousand dollars. The letter may be on the letterhead of a law firm, it may be from a company and signed by someone claiming to be from the "legal department" or it may be sent without a signature. Cease and Desist Letters are usually the first step in a domain name dispute.

These communications are often intended to intimidate the recipient. If you have received one, we can assist in analyzing the situation, explaining the threats, reducing your anxiety and providing a solid defense of your interests.

We can examine the merits of the allegations in the letter and assist you in devising a strategy that is appropriate for your situation. We can communicate with the opposing attorney to point out the strength of your position; we can negotiate a mutually agreeable settlement; and we can represent you in a federal trademark lawsuit, if necessary, to protect your rights.

How Important Are Cease and Desist Letters?

It is very important that you handle the situation well.

Do not ignore the letter or delay in responding. Your disregard of the letter can be used against you. Some judges and arbitrators have ruled that a disregard of the letter is evidence that you are a cybersquatter (i.e., that you are hiding from the law).

If you ignore the letter, the sender may conclude that the registration information for the domain name is fraudulent, that you are hiding because you think that you're guilty or that you have been intimidated and are fearful of the confrontation.

Consequently, a lawsuit or a UDRP proceeding may be commenced against you in order to further intimidate you and/or obtain your domain name through the legal process. Furthermore, if you delay in responding, a lawsuit or a UDRP legal proceeding be filed against you -- before you have a chance to respond and state your position.

As you consider your response to the cease and desist letter, you will need to evaluate the legitimacy and basis of the letter. You will also need to evaluate the strength of your position relative to the allegations contained in the letter.. It may not be in your best interest to attempt to address legal issues without the advice of an attorney. A mistake can be costly.

Evaluating The Threat

Here are some ways to evaluate the validity of the threat and risk that confronts you

• Determine the author of the notice. If the notice is on business letterhead, determine if the business is simply a corporation, another type of business entity or an attorney. If the notice is from an attorney, this is your first clue that the opposing party considers the issue serious enough to have hired someone to accomplish their objectives. You should ensure that you have an experienced attorney to protect your interests.
  
  
• The more documentation included with the notice, the more the issue has been researched. This is an indicator that the opposing party has invested a substantial amount of time and effort before the notice was issued. It’s also an indicator that the opposing party will not easily go away.
  
  
• Who is the opposing party represented in the notice? Is it a business competitor or someone totally unconnected to you and your business? If the notice comes from someone unconnected to your business, the threat may not be serious because they may have the wrong party or they may be bluffing. However, that doesn't mean that you should simply ignore it.
  
  
• What is the monetary value of the claimed wrong? Naturally, the larger the monetary value, the more risk.
  
  
• What are the financial resources of the opposing party? You can discover this type of information by viewing their website, obtaining a business report or searching the internet for information. Through research, you and your attorney can evaluate the threat and possibly discover other legal actions taken by this complaining party. The legitimacy and basis of a cease-and-desist letter can also be indicated by the size and wealth of the Company on whose behalf the letter or e-mail is being sent.

Some letters and e-mails are bogus. There are increasing numbers of individuals who send intimidating letters and e-mails in the hope that the recipient will relinquish their domain name without a challenge. There may be absolutely no basis for the allegations that are contained in the threatening letter. You may be able to conduct a quick evaluation on your own. Bogus letters are often poorly written, use poor grammar, contain misspellings or do not logically base their claims on any laws or court cases. The letters may also misstate a fact situation for your particular situation. For example, the letter may contain template phrases such as "you have infringed on my trademark and directed business away from my website" -- -- when in actuality there is no basis for the allegation that you have taken business from their website.

Letters from law firms on their letterhead stationery should be taken more seriously. It is unlikely that the sender of the letter would use a forged letterhead and/or a forged signature of a law firm. A letter from a law firm usually describes a situation with reasonable accuracy (possibly with exaggeration) and logically bases the allegations on the factual situation, on cybersquatting laws and on court cases. However, some letters from law firms make allegations that are extremely unlikely to win in a courtroom proceeding. Nevertheless, the allegations may be made in order to intimidate the recipient and to imply that the sender is willing to spend substantial amounts of money to hire lawyers to win in a lawsuit or a UDRP proceeding.

How to Respond

Although you can respond to a cease-and-desist letter yourself (without a lawyer), this strategy often conveys an indication of weakness, lack of knowledge of the law and/or limited cash resources to hire a law firm. The sender of the letter may view this type response as a "green light" indicating that they can easily win against you and take your domain name.

Accordingly, it is advisable to use a law firm to evaluate your situation, to determine the strength of your position relative to the allegations contained in the letter and to formulate a strategy for response. We are not including on this website a description of the techniques that we use for the analysis, evaluation, investigation and formulation of a strategy recommendation for you. The reason that we are not disclosing this information on our website is that the disclosure of this information would give an advantage to the senders of these types of letters.

In choosing a law firm to evaluate your situation and to respond to the threatening letter, there are several characteristics of a law firm that can be advantageous to you:

1 It is important that the law firm be knowledgeable about domain name laws, cybersquatting laws and Internet laws. Although an inexperienced law firm may be eager to take your case, it may be necessary for the law firm to conduct a considerable amount of research, analysis and consultation in order to get "up to speed" with respect to the legal issues of the situation. This can result in a substantial amount of hourly time devoted to your case (and the corresponding larger fee charged to you). This inexperience may also result in a delay of several days in responding to the threatening letter. Delays can result in the sender's initiation of a lawsuit or UDRP proceeding during the delay.

2. It is also important for your law firm to be able to demonstrate that it has been successful in combating any attempt to take a domain name from the law firm's clients.

Depending upon the response that you give to the threatening letter, the aggressiveness of the sender of the letter and the strength of the legal position of the sender of the letter, the sender may discontinue the attempt to take your domain name, they may begin a negotiation of a price for the purchase of your domain name --- or --- they may begin a proceeding against you pursuant to the UDRP procedures or initiate litigation in federal court.

The details of a UDRP proceeding are described on this website here. The details of a proceeding through the court system is detailed here.

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