You may be familiar with Anheuser-Busch’s line of “Dilly Dilly” ads for its Budweiser beer. You may not have realized that Anheuser-Busch also obtained a federal trademark registration for “Dilly Dilly,” as a small brewing company with a beer named Dilly Dilly found out when Anheuser-Busch sent a cease and desist notice. Rather than sending a heavy-handed letter from outside legal counsel, Anheuser-Busch sent a town crier dressed in medieval garb to read the themed letter on camera. Anheuser-Busch even offered the brewery owners tickets to the Super Bowl in exchange for renaming the beer. All in all, it was a good public relations stunt that effectively accomplished the purpose of the cease and desist — and likely dissuaded a larger audience from improperly using “Dilly Dilly.” 

Your chances of being met with a similarly humorous cease and desist are pretty slim. Most of the time, cease and desist letters show up in the mail as an unwelcome surprise. They’re intimidating and sometimes even confusing. 

If you’re on the receiving end of a cease and desist letter, and no one’s offering you free tickets to the Super Bowl to go along with it, here are a few things to know and keep in mind. 

What Is a Cease and Desist Letter?

Cease and desist letters are essentially a form of a demand letter, which is any letter that tells you that someone isn’t happy with what you’re doing. Demand letters aren’t limited to potential intellectual property infringement. You could receive them from a business partner who isn’t happy with your performance (or non-performance) or even from a competitor who disagrees with statements made in your marketing or advertising materials.

Bottom line: In a demand letter, someone is asking you to either stop doing something or to take some kind of action. This may be to stop using a term that someone claims infringes a trademark and to remove related materials from your promotional materials, or to simply hold up your side of a contract. 

How Worried Should I Be?

It really depends. You can get some clues as to how aggressive the other side is from the tone of the letter, but you may have to read between the lines to decode whether the sending party wants to discuss a business solution, or whether they are ready to engage in litigation if their demands are not met.

When Should I Contact My Attorney?

Sometimes, companies will try to handle a demand letter on their own at a business level, but you should generally consult your own attorney any time you receive a letter that makes legal claims or contains allegations of legal wrongdoing. Your attorney may be able to reach out to the other side to discuss the allegations and an amicable solution, or can help craft your response to screen for potentially damaging admissions that may increase your liability.  

At a minimum, you will need to conduct a factual investigation around the alleged conduct and consult with your counsel on the strengths and weaknesses in your legal position. Then, together, you’ll determine your strategy moving forward. 

Do Demand Letters Automatically Lead to Litigation?

You should never ignore a demand letter — but you don’t always need to immediately cave to the other side’s list of demands for fear of being sued. Responding to demand letters can be an art rather than a science and there is often room for negotiation before the other side runs to the courthouse.    

For instance, if a client receives a cease and desist letter regarding use of another company’s trademark, we will investigate the use and discuss any potential defenses with the client. If the client’s case is strong — perhaps the client has been using the trademarked term in circumstances that would not lead to consumer confusion — we may send a response disagreeing with the allegations in the letter and offering alternative resolutions. 

In other cases, the client may have good defenses but decide that continuing to use the mark is not worth the business distraction, so could agree to the demands on a timeline that minimizes the impact to the client’s business.

Cease and Desist Letters From a Big Brand 

More cease and desist letters and responses have gone viral recently, often because a heavy-handed letter was posted to social media by the recipient. Big brands are increasingly sensitive to the power of publicity and have, in many cases, become more creative and strategic than they have in the past. Many large brands want to avoid seeming like a big, threatening bully. 

For example, Starbucks once sent a formal, rather heavy-handed cease and desist letter to a small brewery in Missouri that was using the trademarked “Frappuccino” for one of its beer names. In response, the brewery sent Starbucks a $6 check — all the profits they’d made from that beer — and then publicized the letter and response. Starbucks caught a lot of heat for looking like a trademark bully. 

So, is it safe to troll a big brand on social media if they send you a cease and desist letter? As tempting as it may be, it’s better to err on the side of caution. Before you respond in any way, you should check with your attorney. 

Next Steps After Receiving a Cease and Desist

If you’ve received a cease and desist in the mail recently, don’t panic! You may be able to simply meet a few of the sender’s requests and then get back to business. Call your attorney, work through the letter and investigation together, and come up with an appropriate response.