Clients are understandably concerned and alarmed when they receive a “Cease and Desist”letter from a law firm, threatening them with a law suit.
The typical letter makes a legal demand that you stop (“cease”) and refrain (“desist”) from an activity that allegedly constitutes an intellectual property infringement (e.g. patent infringement, trademark infringement, copyright infringement, etc.)
IMPORTANT: DO NOT IGNORE THE THREAT – CONTACT US IMMEDIATELY
IMPORTANT: DO NOT REPLY TO THE LETTER OR SPEAK TO ANY CALLER
Our firm’s first objective is to avoid costly litigation. The second objective is to boldly assert and defend your legal position and to plausibly maintain it.
Facing the prospect of a protracted court case can be unnerving, given the uncertainty and extremely high cost of litigation. But, relax! In nearly 25 years of dealing with these confrontations, we have always managed to overcome these situations by strategic and skilful negotiations.
We will analyse the nature of the alleged infringement and respond accordingly. The response will vary according to the complaint and to the identity of the complainant.
We are assisted by the fact that Australian Patents, Design, and Copyright legislation makes it an offence to make unjustified threats. Potential litigants must be aware and take heed of the groundless threats provisions before asserting any intellectual property right in Australia. Where the threatened person believes that the complainant has no grounds for making the threat and where no legal proceedings are commenced by the complainant, damages may be awarded against the complainant.
Commercial litigation is a high-stakes business game that you can win with good facts and superior strategy. To be successful, it is crucial to work very closely with you, and to respond in an informed and timely manner.
As a first step in Trademarks and Copyright disputes, we prepare a precise timeline of all the relevant facts and history. We can then identify the actual legal problem, propose a response strategy and try to settle the dispute.
Patent Infringements are more complex and there are a number of significant differences to consider when developing a response strategy. Patent litigation is much more expensive – in the range of $1 million in costs as a minimum to assert or defend against a patent through trial and appeal, not including damages.
Because of the higher financial risks, one must thoroughly investigate patent infringement allegations to determine:
- the scope and meaning of the patent claims;
- whether your company’s product could infringe those patent claims; and, if so
- whether the patent is valid.
There are a number of factors that can influence the strength of the patents, the importance of the technology, or both, and thus are highly relevant to your company’s position.
