Reading a demand letter without assuming it is a verdict

A demand letter often arrives with legal terms, a large payment figure and a short reply date. That presentation makes the claim look settled. It is not. Read the letter as a list of assertions and requests from one side. Some may hold up; some may not. Your first job is to sort out which is which, not to accept the sender's description of you.

Separate the allegation from the requested remedy

Write down four things from the letter, each on its own line: the right being asserted, who claims to own it, the specific conduct they object to, and what they want. The allegation might concern a photograph, a brand name, a product feature or a contract. The demand might be to stop a use, hand over information, pay money, sign a promise, or several of these at once.

Keep those lines apart. If one use does need fixing, that does not make every payment or promise in the letter fair. And an inflated demand does not mean there is no real problem underneath it. Judge the claim and the proposal separately.

A letter and a proceeding are different events

A trademark letter or email, on its own, does not mean you have been sued. A federal lawsuit starts when you are served with a complaint, which sets out the claims, and a summons, issued by the court clerk, which names the court and case number and states when you must respond. Service usually happens in person or through a registered agent, so you will usually know when you have been sued. 1

If you receive papers that name a court, confirm the case yourself. Search for it in PACER, the federal courts' public records system: search the court named in the papers, or use the PACER Case Locator to search all federal courts by party name. Searches and documents carry small per-page fees, listed on PACER's pricing page. 5 Take your deadline from the summons, not from a general article. 1

A Copyright Claims Board (CCB) notice is also a formal proceeding, not an ordinary letter. You have 60 days from the day you were served to opt out. Opt out online through the CCB's eCCB system with the code in your notice; you do not have to give a reason. A paper opt-out form must be postmarked or handed to a commercial carrier by day 60. 2 Do not rely on an extension: the Board can grant one only in exceptional circumstances. If you do nothing, the proceeding becomes active and moves forward whether you take part or not. Opting out ends the CCB case but not the dispute: the claim is dismissed without prejudice, and the claimant can still sue you in federal court. To check that a notice is genuine, call the CCB on the number published on its website, (202) 707-3000. 2

Verify the sender without losing the real issue

Do not click a link, open an attachment or pay an invoice from the letter until you have checked who sent it. Contact the organization through a phone number or website you already know is real, not the details in the message. 3 If it claims to come from a lawyer, look the lawyer up in your state bar association's attorney directory. 1 If it turns out to be phishing, report it at ReportFraud.ftc.gov. 3

Then check the right itself. For a trademark, look the mark up in the USPTO trademark search database and its record in TSDR (Trademark Status and Document Retrieval). 1 For a photo, text or other creative work, search the Copyright Office's Copyright Public Records System for a registration. 6

Do not treat bad spelling as your only test, or polished letterhead as proof. A genuine sender can still make a wrong claim, and a convincing imitation can still be a scam. Verification answers "Who is this?" Legal assessment answers "What do their rights and the facts support?" Work on both, and keep every message as it arrived.

Bring your own history back into view

Before you reply, collect the version you used, where it came from, any license or permission, and the emails around it. A designer may have supplied the material. A former employee may have arranged a license. A customer may have authorized a use the sender does not know about. Find the records rather than guessing, and do it before you draft an angry denial or a sweeping apology. Saving IP evidence shows how to keep those records usable.

If the claim is about a trademark, a registration does not settle infringement. The owner has to show a valid mark, rights senior to yours, and an unauthorized use likely to confuse people about who makes or sponsors the goods or services. A federal registration on the Principal Register creates a presumption of validity and ownership, and that presumption can be rebutted in court. Courts weigh factors including how similar the marks are, how related the goods or services are, where they are sold and how carefully people buy them, any actual confusion, your intent in choosing the name, and the strength of the owner's mark. A court can also find no infringement, or that a defense bars the claim. 4 Copyright and other rights use different tests. Answer the legal question the letter actually raises; "I meant no harm" is not an answer to it. Similarity and infringement walks through those tests.

Understand a commitment before making it

For a trademark letter, the USPTO describes four options 1:

1. Respond. Deny infringement if you have a basis, or ask for specific evidence of why the owner believes you infringe, such as their dates of first use and whether the mark is federally registered.
2. Do nothing. You are allowed to, but it carries risk: if you are later sued, a court may find you acted recklessly and award additional damages.
3. Negotiate. Ask for a license on terms you both accept.
4. File your own lawsuit asking a court to declare that your mark does not infringe.

If the sender's mark is only an application, you can oppose it at the Trademark Trial and Appeal Board within 30 days after it is published in the Official Gazette. A registered mark can be challenged with a petition to cancel. 1

A request for clarification, a negotiation, a change to your public material and a signed settlement each do different things. Before you offer money or sign a promise, write down exactly what it covers: past use, future conduct, other works, confidentiality, and any obligations that continue. Before you sign a settlement, pay a demand, or answer a summons or an active CCB claim, have an attorney experienced in trademark or copyright disputes review it; you are not required to have one to answer a letter, but these steps are hard to undo. 1

Keep the complete letter and every reply. Write a one-page summary of the facts and the questions you still cannot answer. It keeps your reply accurate and makes any consultation shorter. You are entitled to understand your options before you correct anything.