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How To Deal With A Cease And Desist Letter

How To Deal With A Cease And Desist Letter

After decades of New Orleans Saints fans sporting black and gold through losing seasons, they never lost faith. One losing season after another, fans hollered, “Who Dat say they gonna beat dem Saints.” And in the spring of 2010, generations of Saints fans finally saw their years of constant cheering through losses rewarded. They were finally going to the Super Bowl.

And with this news, memorabilia was oozing with black and gold pride. Retailers printed the favorite chant, “Who Dat”, on koozies, T-shirts, flags, bumper stickers – you name it, they made it. Just 5 years after Hurricane Katrina, the city was finally feeling itself again. Houses were rebuilt, people were moving home, and the Saints’ successful season pumped more joy into the city than it had seen in a long time. 

Residents from different backgrounds and areas of the city came together as one to celebrate that their team had made it this far. To be on the ground during this time was to feel the power of hardships transform into a celebration not many people experience in their lifetimes. 

Then something happened that no one expected but probably should have seen coming. The NFL sent cease and desist letters to Louisiana retailers demanding they stop selling merchandise with “Who Dat”. 

The NFL claimed they owned the Who Dat trademark. But New Orleanians had been chanting it long before the Saints franchise came into existence. In fact, the phrase’s earliest documentation can be found from an 1852 edition of a local New Orleans newspaper.

Here’s What To Do If You Receive A Cease And Desist Letter

When an enormous company like the NFL went against mom-and-pop retailers, it seemed likely that the business owners would cave. But when it comes to the Saints, New Orleanians are proud and persistent. 

Many new details arose regarding the phrase. The long history of its use in New Orleans, specifically in a local high school, was hard to ignore. The retailers did not comply in the face of legal repercussions. And they won.

Have you received a cease and desist letter? Contact Carson Law today.

The Cease And Desist Basics

It’s important to realize that cease and desist letters are not filed in court. Instead, it’s the act of an individual or business providing notice to another to stop a certain activity they believe infringes on their rights or property.

Cease and desist letters have also been referred to as a “demand letter” and “stop harassment letter”. If there is true legal backing behind their demands, it may be in the recipients’ best interest to comply. However, without the help of an experienced attorney, you run the risk of complying unnecessarily and damaging your own business. 

To Comply Or Not To Comply With A Cease And Desist Letter

If you’ve received a cease and desist letter, then that is the question. What’s important is to not rush into a decision. There are varying facts that may determine your best course of action. However, you should keep the time allotment for response in mind. 

First of all, is the alleged action infringing on the sender’s rights? Is it just a plea for you to choose another business name because they forgot to register the name?

Or did the sender trademark their name years ago? There’s, even more, to consider, too. Such as, are both businesses in the same industry and geographical region?

If the businesses are not in competition, it may make sense for each to use the disputed name or phrase. However, if they have done their research and you could in some way impair their business, then complying may be the answer. The best solution is to always contact an attorney with experience in cease and desist letters.

Knowing whether to comply could mean success or failure to your business. Make the right choice. Contact Carson Law today to explore your options. 

The Repercussions Of Not Complying Vs. Complying Too Soon

In the case of the New Orleans Saints stardom, businesses chose not to comply. Of course, they risked huge lawsuits against the NFL, and that alone can be scary. 

But they stood their ground, hired attorneys, and really looked at the facts. In the end, the NFL backed off. However, they did add some stipulations. One includes “Who Dat” not to be on T-shirts that contain other Saints’ symbols, such as the fleur-de-lis. 

But it’s important to realize that this isn’t always the outcome if you refuse to comply. In fact, this is one of those unicorn cases where the little guys won. If not played right, you could find yourself in years of litigation. The financial and emotional cost may be more than you’re willing to give. And that is OK. Especially if you own a small business, court and lawyer costs alone could leave you bankrupt. 

Reach Out To The Right Attorney

When it comes to your small business – it’s everything. You’ve put your savings and sweat equity into building something to provide for you and your family. Moreover, you’ve spent time away from your family. You possibly miss your young children’s milestone moments while you work hard to ensure they have a comfortable future. 

You owe to yourself, your family, and your business to take measures that will prevent litigation down the line. To do this, you don’t just need any attorney. You need the right attorney to make sure your business is secure.

Don’t Immediately Respond To The Sender Or Their Attorney

When you receive a cease and desist letter, it’s likely to stir up some emotions. It may scare you or make you mad. Your initial response may be to do something right now. Don’t.   Speak with your attorney and discuss your options- make sure that you’re responding the right way, at the right time. 

 

Get An Experienced Attorney In Your Corner

For the retailers selling Saints gear, they won because they found good attorneys. 

When attorneys go into practice, they often focus on specific areas of law. That means, if you need a divorce lawyer, you want to find someone who has dealt with divorces. Moreover, you want to make sure they can handle your unique situation – child support, custody, enforcement, etc. 

This is the same for any type of lawyer you need. When it comes to the business you’ve worked so hard to build, you need an experienced business attorney. One that will help you from the very beginning. You need to consider your certificate of formation, operating agreements, partnership agreements, the type of entity that best suits your needs, breach of contract protocols, and more. 

Your Business Needs Carson Law

In the case of the Louisiana retailers, they were able to celebrate their victory along with the Saints’ first winning Super Bowl. Which meant not only were they allowed to sell their products, but customers bought out their inventory.

Whether you just came up with your new business idea or you’ve been in business for years, you need an attorney in your corner. Otherwise, you can’t be certain that you won’t end up in litigation that will cost you everything you have.

For instance, an LLC can help keep your personal finances and property separate from your business dealings. This means if your business is sued, your home and personal savings are off limits. The situations are endless, which is why you need someone who knows business law who can curate a plan that works for your unique situation and needs. 

Carson Law works to ensure small businesses are set up from the beginning so they can thrive and avoid legal issues and litigation down the line. If you need the right representation for your business, contact Carson Law today.