I recently attended an interesting webinar on the topic of trademark law in the world of the internet. I had the pleasure of learning about IP Enforcement Plans, the Communication Decency Act, the Stored Communications Act, and a host of other topics that I find fascinating, but you might think less so. The presenters were nationally known intellectual property attorneys from well-regarded firms across the country and one of the subjects they touched upon caught my attention: advancements in handling trademark infringement claims. Their advice on this topic is worth sharing.
Typically, when the owner of a trademark believes that his or her rights have been infringed upon, the standard response is to hire an attorney to send an intimidating cease and desist letter to the infringer. The attorney takes a stern tone, identifies the alleged misuse of the mark, and warns that if the misuse continues, litigation will follow. The accomplished attorneys who were speaking at the webinar, however, universally agreed that this is no longer the preferred course of action. With access to the internet now prevalent, they have found that, too often, threatening cease and desist letters are taken directly to social media pages where the victim of the infringement is depicted as overly aggressive. The result is injury to reputation on top of injury to trademark rights.
The “new trend” that these esteemed attorneys recommended to combat the problem was to “be positive and creative” in identifying the issue and to work it out with the infringer without hostility. They gave the example of a 2017 case in which Anheuser-Busch sent a town crier with a scroll to deliver a comical cease and desist letter to a brewery that was allegedly infringing upon its rights. In that case, humor and creativity were the direct cause of a successful and speedy resolution of the matter.
It was a refreshing moment for me to think that positivity is the “new trend.” I hope it is true, in litigation and beyond.