I deal with infringement matters quite often. However, I know there are many more owners of intellectual property that need legal assistance but can’t afford it. I totally get it. I’ve created this step by step guide in order to navigate your own way through an infringement matter.
If you’re not going to use an attorney to handle your infringement matters, you can follow this step by step guide to get you from infringement to settlement without paying for an attorney. *NOTE – you do not need a Federal Registration to go through this process, but infringers are much more likely to take you seriously if you do have a registration.
STEP 1 – Gather Infringer’s Information
So you’ve found someone infringing on your work. Not cool. What now? Before anything, gather any proof you can that shows they have advertised your work or made any sales. All you need is screenshots. You will want to provide printouts in your letter.
On top of gathering photos, you will need the infringer’s address in order to mail the letter. Hopefully it’s listed somewhere online – Facebook, Instagram, website, etc. If you’re not able to find the address online, then you will need to make a purchase from the infringer in order to get their address. If their address is not listed on the package as the return address (drop shippers), ask if you can exchange the item and ask where to send the exchange.
STEP 2 – Prepare & Mail the Letter
You can easily download the template I have prepared and customize it to fit your needs (it’s at the end of this post). The letter has everything you need, but you will need to indicate what kind of infringement plus a few other things. When preparing the letter, don’t forget to print out your work and the infringer’s work so they can compare the two.
When mailing the letter, make sure you pay extra for signature confirmation. You want to ensure the infringer receives the letter in hand.
STEP 3 – Response
If the infringer knows what’s best, they will respond by the due date. At that point, if you know they have made sales, don’t just accept the fact that they have stopped selling. You are entitled to damages, and that’s what you need to demand. You may not receive the settlement you asked for, but you should keep demanding to receive something. If the infringer you reached out to is not the wholesaler, demand that they give you their source. In addition, if they are the wholesaler that has sold to other retailers, you need to make sure the infringer recalls the items from the other retailers.
If you have a registration and know you are entitled to statutory damages, you are still entitled to damages even if they claim they did not make any sales from the product.
If the infringer does not respond, then it may be time to hire an attorney. It’s likely that the infringer did not take your letter seriously since it was not on an attorney’s letterhead. I see this quite often. If a client comes to me after they have sent their own letter, then we discuss our best options on whether we should send another letter or initiate a lawsuit. There is not a cookie cutter answer to this. Many factors go in to play in making this decision.
I hope you’re able to use this guide to solve some of your own infringement issues. These are the exact steps I use when dealing with infringers! Make sure you download the template cease and desist letter!
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