Digital Law Group

kleargearSo you bought a product online.  Maybe it didn’t arrive.  Maybe it didn’t work.  Maybe it wasn’t what you bargained for.  So you repeatedly called or emailed customer service and didn’t get a response and now you’re mad.  What to do?

Point in case: John Palmer of Salt Lake City placed a $20.00 online order with When the order did not arrive in a timely manner he contacted the company but could not get a response. eventually cancelled his order without explanation.  After the incident, Palmer’s wife decided to let their fellow Internet shoppers know that buyers should beware when shopping at by posting a negative report on  Three years later, informed the Palmers that they had violated a non-disparagement clause hidden in the “small print” Terms of Use (that no one ever reads before clicking “yes” when buying something online).…

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Image So you’ve done your research and have decided to retain a lawyer.  Now what? As a first step, an attorney should provide you with an agreement so you clearly understand the scope of the services, costs and the terms for payment. In California, a retainer agreement is required when the work to be performed is expected to exceed $1000 whereas, in New York, the amount is $3000. Other states require attorneys to provide a fee agreement regardless of the amount. In any event, it is always a good idea to obtain a “retainer agreement” or “letter of engagement” (both are designed to accomplish the same purpose) and then read the fine print.

A client recently asked me to review a retainer agreement for a matrimonial matter. I made a few edits — as there were terms in there that actually violated the Rules of Professional Conduct — and I told her to forward my comments to her attorney.

Attorney to Client: I am unwilling to make the changes you have suggested; some don’t make sense and some are simply not acceptable. I will return your deposit less the time I spent reviewing all of the pleadings and drafting the initial documents.

Client to Me: I should have spoken to you BEFORE I dropped off the deposit without a signed agreement — I guess I learned an expensive lesson.”

Me to Client: Without a retainer agreement and an understanding of her terms of representation, she should not have started work on your case and she knows it. Let her know you expect a full refund otherwise, if not, I will contact her directly.

Client to Me: Attorney says I can come and pick up my deposit.

This is a good example of why it makes sense to have a legal professional review a retainer agreement.  I’m also wary of any lawyer who gives you their agreement and expects you to sign or hand over a check on the spot.  Here are a few main points I’d like to draw your attention to when reviewing these type of agreements:

1) Billing Increments. Rules of Professional Conduct provide that a lawyer who “has not regularly represented the client” shall give written advice of the “basis or rate” the client will be charged. It is most reasonable to bill in increments of 6 minutes (1/10th of an hour, rounded up).  However, I have reviewed engagement letters that are as high as 1/4 of an hour, (rounded up that would be 15 min) so, even if your lawyer only spent 4 minutes, say, drafting a quick email, you’d pay for 15 min. To this end, this is an EXTREMELY important point of negotiation. At the same time, it would be advisable to negotiate a project-fee basis (as I do), particularly if the matter is somewhat standard (e.g., corporate set up, trademark or provisional patent filing).

2) Non-refundable Retainers. Believe it or not, some lawyers don’t refund their client’s deposits and if an agreement is vague on this point or states “non-refundable” or “minimum fee”, they are allowed to do this, So, be sure your agreement has a refund provision.

3) Third party costs. One provision I frequently push back on is usually labeled as “Other Expenses and Costs” and requires you to agree to pay them.  To this end, I would request the inclusion of language that requires “(a) those costs to be reasonable and (b) that you are advised in advance of third party costs to determine the reasonableness of such costs.”

4) Record keeping. Many states have no requirements that an attorney maintain for records for a specific period of time.  It is a good idea to have your attorney keep them for at least 2 years – particularly if you don’t back up your computer or prone to losing files.  Otherwise, your attorney is free to destroy your files upon conclusion of her representation.

5) Interest for Late Payments.  A reasonable rate of interest for late payments ranges from 0.5-1.5% per month. I have seen attorneys ask for as much as 10% and find this unconscionable particularly when payment is demanded upon receipt (which you should also try to negotiate to at least 10 days from receipt).

6) Arbitration.  Arbitration clauses should be limited to bill disputes only, and not, “any and all disputes arising out of the attorney/client relationship.” All State Bars have a complaint process to report an attorney’s alleged misconduct/unethical behavior.  While your agreement may not carve out this point, this will not prevent you from filing a complaint where the attorney is licensed.

If a lawyer is not willing to negotiate their retainer agreement and, if requested, give you a ballpark budget for handling a non-litigation legal matter, it’s a good sign that person is not a good fit for you (particularly if cost is an issue, as is the case for most start-ups).

Lastly, when at all possible, try to get a personal recommendation for an attorney rather than finding one on the Internet. I’d also avoid relying on (a privately owned marketer that pulls attorney profiles and posts them on the website with little substance, until an attorney claims their profile). Then, don’t make up your mind about whether to retain someone until you’ve discussed your needs and feel fairly comfortable working with him/her; then read the fine print.

Start-ups have enough challenges– from raising funds to generating sales—yet sometimes the biggest threat comes from within.  Businesses that take payments via credit card or PayPal should be aware that customer information theft is on the rise and your business can be sabotaged if you don’t have the proper checks and balances in place.

Case in Point:  A company paying thousands per month for advertising/Google adwords was growing their online business exponentially.  Suddenly, sales started to trickle down to almost nil. At the same time, the company began receiving various reports of unauthorized credit card charges.  After the company received notice from a local police department, I was retained by the Board to look into the matter.

 Me:  I have two questions for you – who handles the new customer inquiries? Who takes the payment information   from the customers?

Him:  The same person – our General Manager.

After requesting a customer list and copies of emails reporting credit card fraud, I noticed a large discrepancy – those complaining of credit card fraud did not appear on the company’s client roster.  We soon determined that someone internally was taking customer orders and billing them directly, albeit under the company’s name.  While these customers believed they were being serviced by my client, in reality, their accounts were being diverted elsewhere and subsequently, their credit cards misused.

While we were hopeful that the police investigation would conclusively show the General Manager as the culprit here, it was later discovered that the company emails were set up such that passwords and terminals were used on a shared basis; this means that anyone could have facilitated this fraud under another person’s identify/account. To be sure, I then had PayPal account records subpoenaed. After waiting several weeks, what was ultimately sent were summary account statements that did not provide any level of specificity – not helpful at all.

After reviewing the evidence, the police determined there was not enough to convict any one individual and the investigation was closed.  It was recommended, however, that the company file a civil suit where the burden of proof would be based on a “preponderance of evidence” — much lower than a criminal case which requires “beyond a reasonable doubt.” Suffice to say, by this time, the company was in financial ruins and unable to afford the cost of civil lawsuit.  The story ends like this: The thief got away, the company was ultimately responsible for the credit card theft (due to their lax security policies) and they have now ceased operations.

What can you do to prevent this tragedy from happening in your organization?

First and foremost, common sense would dictate that the practice of allowing the same person who takes orders to also process payment details exposes any company to risk. Without proper oversight and checks and balances in place, lax security procedures enable anyone lacking scruples to sabotage a business. Next, ensure employees/contractors do not share passwords or have access to one another’s passwords or computers – otherwise, fingers can be pointed such that no one person would appear to be responsible in the event of theft. Lastly, if you take customer orders via your website or an 800 number, record those calls and also be certain that there are several people that are copied on the email correspondence (e.g., send to in order to track the progress of the order and payment confirmations.

Advances in technology have made it easier for unscrupulous employees to steal customers and their information – whether changing payment instructions or even using a card skimmer — it is recommended that you implement tactics to prevent internal fraud:

  • Reconcile your accounts weekly rather than monthly and by more than one person
  • Use or your bank to process online transactions so that employees do not get access to customer credit cards.
  • Check PayPal accounts or Bank Wiring details regularly– (even if you are not concerned with employee theft, a website can potentially be hacked into and payments diverted).
  • Always secure your POS device.
  • Have a separate authorizer of credits from the one who onboards the customers.
  • Make sure all credits have accompanying internal documentation of customer information (name, contact information).
  • Conduct regular internal audits at random times and intervals.
  • Review any volume spikes in sales activities and reconcile with website traffic reports and 800 number call volume.
  • Protect your passwords and verify internal access controls for online account reporting, email address contacts and checking account change requests.

While an atmosphere of trust is essential for all businesses, protecting the financial stability of your company is just as, if not more important. Hopefully, the suggestions I’ve outlined above will get you thinking about building a plan that will mitigate risk for your company.  If you’ll like further information or a consultation, please email me or leave a comment!

Be on the lookout for Intellectual Property (IP) and domain name-related schemes specifically designed to get you to needlessly part with your cash. If you registered a trademark, copyright or patent or if you own a website domain, there are number of deceptive marketing practices that some of you may fall prey to if you are not aware that they are actually scams.

What you need to know…

When you file a trademark, patent or copyright with the US Patent and Trademark Office, US Copyright Office or other IP-related government entities, your application becomes public information and anyone can access these databases. So-called marketing companies take your information and then solicit their victims via email or regular mail for services seemingly related to intellectual property or domain name registrations – services that you don’t actually need.

The solicitations may include:

(1) Offers for legal services to file your IP in another country.

(2) Trademark monitoring services

(3) Invoices for renewals (coinciding with your registration dates)

(4) Recordation fees for trademark registration with U.S. Customs and Border Protection

(5) Offers to include your trademark listing on private registries or directories

(6) Invoices for foreign registration

(7) Notifications that an unauthorized 3rd party seeking to register your trademark or domain and will be approved unless you respond and pay the listed fees

These companies send out notices and invoices under official looking letterhead and often times, use government sounding names such as the “TM-Collection – International Register of Trademarks-Hungary,” The Asian Domain Registration Service” or “US Customs and Border Protection (CBP) Bureau.” Oftentimes they use scare tactics such as:

another company is attempting to register your intellectual property in their country and that if you do not respond, we will assume you have authorized this registration. Click here for more information on this scam.

Other times these scammers will simply send you an invoice in order for you to register your trademark from Hungary, for example, (in the amount of $1650.00 or otherwise be advised that you that you will lose your rights to register in the future).  Again, the solicitations are worded in such a way so as to appear that these fees are an ordinary charge and that you are obligated to pay to protect your intellectual property.

Alternatively, victims who already own a “.com” domain name are warned by so-called international domain registries that they need to buy all of the other variations from .net, .biz, .cn ,etc. in order to protect their trademarks within their countries. The truth is that you don’t need the help of these officious third parties as you can easily register alternative domains yourself with reputable registrars in your home country for a few dollars each a year.

If you receive any kind of renewal or listing notice, here are the six basic things you should do to avoid a scam:

  • Check the source of the official correspondence – communication from the USPTO will either come from an address in Alexandria, Virginia or an email return address would end in “”
  • Research the exact name of the organization that sent out the invoice and see whether they show up on any watch lists (or simple google their names)
  • Read every word of the document. If it’s a “legal” trick, it will say somewhere (even in very small print) that it’s a solicitation, not an official invoice. You will probably note bad grammar and misspelled words in the solicitation as well.
  • Know the normal maintenance filing deadlines and requirements associated with a U.S. Trademark — which typically occur between the 5th and 6th year after registration and again between the 9th and 10th year.
  • Trust your instinct. Maybe the due date seems too soon? Maybe the due date has already passed? Maybe the details in the “notice” are limited and include no contact phone number?
  • Work with your lawyer or other provider to help verify the authenticity and accuracy of any invoice or before paying it.

IP scams have become so rampant that that government entities have begun issuing warnings to advise intellectual property holders to be aware. Click here for the USPTO official warning. The World Intellectual Property Office also maintains a database containing samples of scam letters and invoices. Click here for samples of these “scam” invoices. You may also file an online consumer complaint with the Federal Trade Commission and/or email the USPTO @

Readers, be on your guard for this new surge in patent, trademark and domain registration scams deigned to trick inventors and businesses into paying hundreds or even thousands of dollars for bogus services.  Feel free to email or comment on this post if you’d been the target of one of these scammers.

Employees vs. Independent Contractors and why it matters.

When starting a business and bringing staff on board, you must decide whether those individuals providing the services are employees or independent contractors. This post provides important information about how to classify your workforce and avoid costly penalties.

In my experience, many start-ups bring on initial staff as Independent Contractors — this way, they don’t have to withhold payroll taxes or provide benefits such as sick days or workers compensation.  However, according to the Department of Labor, up to “30% of companies misclassify their workers”  (See Statement by Deputy Secretary of Labor, Seth Harris, June 17, 2010; this results in billions of dollars of losses for the IRS so naturally they are now cracking down.

As of January 2013 when payroll taxes increased from 4.2% to 6.2%, a new level of scrutiny will applied to companies to make sure they are properly classifying their workers.  If you are later found to have misclassified an Employee as an Independent Contractor, the IRS can retroactively assess back payroll taxes and slap on penalties.

To be clear, Independent Contractors are generally those people you hire to complete a specific task or project; they work intermittently or on a temporary basis. in Examples include: accountants, lawyers marketing consultants, trainers or outsourced developers. These people tend to work primarily from their own homes/office and at their own hours and serve clients other than you. In other words, unlike an Employee, you do not control their “when, where and how” work is to be performed. For this reason, a company does not need to withhold taxes or provide benefits to Independent Contractors.  At the end of the year, your company issues them an IRS Form 1099 reporting all the monies that were paid to each individual.  It is the individuals’ responsibility to file returns and pay their own taxes for the amounts received.

Once you have set up an LLC or Corporation and start to bring on a workforce, follow the link below to review the IRS’s 20 Factor Test to find out whether someone should be classified as an Employee or Independent Contractor. If you think you have misclassified a worker — not to worry — as of 2011, the IRS began offering a Voluntary Classification Settlement Program to change the status of workers without penalty.  Click here for more information.

This is one area you don’t want to procrastinate — a falling out with an outside contractor that leads to litigation can open up a can of legal worms. States are working more closely than ever with the IRS to ensure that they are not missing out on the additional 2% of flesh from each worker’s paycheck. For more information, check out Forbes article, New Crackdown on Using Independent Contractors (Nov. 12, 2012).

Lastly to note, if you have determined that someone is legitimately an Independent Contractor, be sure to sign an agreement that obligates them keep your information confidential, requires that they transfer rights to intellectual property and itemizes the work product they have committed to deliver (and you have agreed to pay for), to avoid any disputes down the line.

Any doubts or questions as to whether you are properly classifying your workforce? Free to email me or post your questions below.

Is there a topic you would like to see covered on BrillsonLaw? Would you like to be a guest blogger?  Email

Going into business with someone or choosing to invest in a startup entity is a huge step and one that could have serious repercussions if the party (or parties) turn out to be less than scrupulous. Performing personal due diligence (not to be confused with corporate due diligence) does not necessarily mean ordering a credit or criminal background check in the manner that many employers do or doing a deep dive into their corporate or financial records. Rather, by using publicly available information (as outlined below), you can check out your potential partner to determine whether he or she is an upstanding match for you.

Case in Point…

A few years ago a client called me from a Las Vegas airport. He was prepared to write a check to invest in an exciting new business opportunity: a chain of executive health care centers.  According to the business plan, the company was operational and seemingly profitable in their first location and were looking to expand nationally.  He visited one location and was highly impressed.

Him: This is an amazing opportunity.. They told me I had to have the money deposited by the end of the week or I’ll miss out on this exclusive funding round.

Me:  Cool your heels. Get me a copy the company’s Cap Table (short for Capitalization Table, a document that lists out shareholders names, contact details and their ownership percentages) so I can check them out. I’ll work quickly. Don’t write the check – I’ll get back to you in a few hours.

Him: All I have is the business plan.

Me: The law requires that they disclose their Cap Table when offering securities – if they express any resistance, tell them I’d like to speak with their attorney.

The Cap Table was forwarded and I quickly went to work.

I researched each individual on the list and what I learned was startling…not only had 3 of the directors been charged by the IRS with tax fraud but it seems that a few of them (and their wives) had previously set up a similar company and were being sued in 2 states for embezzlement. I then came across a website that named these same individuals as the “masterminds” of an alleged ponzi scheme involving executive medical facilities. To this end, my client narrowly escaped being one of their many victims.

This is a perfect example of how many people – even highly successful ones – can be too trusting and take what other’s say on face value; this is particularly true of young entrepreneurs who are wide-eyed and relatively inexperienced. Though, when you are racing to the first goal line – whether it is raising money or launching a service or product – you may take short-cuts in choosing who you work with because you are so desperately in need of another pair of hands or eyeballs. Though, wouldn’t it be beneficial to you and/or your company to limit liability and risk by conducting due diligence before entering into business relationships?

Here is some insight into my typical investigation process

1) Name and Email Address Searches: Use popular search engines to research individuals/company names and email addresses. (Best if you have both their business and personal email addresses” If the company has a list of partners or shareholders, search their names and emails too.

2) Reverse look up phone-numbers. Use www. or and see if the registered name appears.  Then enter the phone numbers e.g “111-555-1212” . Running this search gives me a good idea if the phone number has been used anywhere online.

Sidebar Note: Sometimes I find a different name other than what they provided as the registered user, or I may find a web site where the phone number or email was used as a contact number. From there, I may even find a personal ad placed where the subject was offering employment or seeking investment. I can also find out which forums the subject hangs out at and read their comments.

3) Patent/Trademark Searches: Go to the USPTO.GOV website and see if the person is associated with any trademark or patent filings. In one case we learned that an individual making detailed inquiries into a company was in fact representing a competitor and was posing as a potential customer, trying to find out confidential information from my client.

4) Domain Name Searches: Go to and see if this person/company owns any by searching the whois directory to see if credentials check out.

5) Business registration searches: Go to the Secretary of State’s website in the company’s place of incorporation. Do a business entity search and see whether the company is in good standing (e.g., is the company paid up on taxes and registration fees) and who the shareholders are, if listed.

6) Consumer Complaint Websites: Go to sites such as”

There you may find whether any negative reports have been filed about individuals and companies

7) Civil/Criminal Records Search.  Go to the website of the county/state to search online for civil and criminal records on the subject. You can find out which county to search based on the subject’s phone number or zip code revealed in the previously mentioned searches.

Sidebar Note: I have found numerous civil filings on subjects regarding business dealings, family law cases involving domestic violence and DWI convictions. Some of these can be explainable (hey, no one is perfect) but if someone has a record, I’d respect them more for being forthcoming (since you’d likely find out anyhow) rather than failing to disclose their history.

Based on some of the above scenarios, it doesn’t take a rocket scientist (or a lawyer) to understand the importance of conducting due diligence on a individual or company before signing agreements or entering into a business relationship.  It may, however, make sense to contact a lawyer to assist in your due diligence process — which could cost anywhere from $250 to $1000 depending on the size and scope of the investigation.

Questions? Comments? Bloggers always like to hear from their audience!


I was contacted by the management of a consumer product line; the COO was in a panic “we are being sued for trademark infringement and we received a 30-day cease and desist letter.”

Me: First, let’s be clear. You are not being sued. This is only a threat.

Him: But I am looking at the court papers, we are being sued.

Me: These haven’t been filed.  They are just threatening to file those papers if you don’t agree to their demands — basically, to stop using the trademark within 30 days.

Him: That’s not possible! But…they are a multi-million dollar company. They hired a top NY law firm to handle this.  They will crush us.

Me: They are just trying to intimidate you. No need to panic — let’s figure out a strategy.

Trademark infringement is when someone uses a brand name, logo, or slogan to trade off the goodwill of an established company.  The main test is whether it whether there is substantial similarly such that a competitor’s mark causes confusion in the marketplace. For example, a beverage manufacturer could not adopt the mark “Koka Kola,” because although this mark is spelled differently from the famous  Coca Cola mark, it is still pronounced the same and therefore could cause confusion amongst buyers. Trademark law would stop a manufacturer from using the name Koka Kola because It would appear to be trading off the good-will of an existing brand name to promote its products.

Whether or not a party has infringed on another’s trademark is a question for the courts. Though, most trademark infringement cases are settled out of court and they start with sending the alleged infringer a “Cease and Desist” notice to prompt negotiations. You don’t necessarily need to hire a big law firm to handle your case; as a solo practitioner, I have successfully defended clients against infringement claims. This one case stands out in particular.

I reviewed the claims and I told my client this: “if you want to defend this trademark, you it is unclear whether you will succeed (the name and logo were actually quite similar) and it will probably cost you upwards of $100,000 in legal fees; if you lose, in addition to these fees, you may have to hand over all your profits and pay the other side’s legal fees as well.”

“We’ll have to think about this” he replied. Then he shared with me something else … “our product is being counterfeited by a Chinese manufacturer using our same packaging and trademark and it’s being sold at such a low cost that we can’t compete. In any event, we were planning to discontinue this product in a year or so anyhow.”

At this point my legal light bulb went off.

1) Their remaining product cycle is 1+ year(s).

2) The counterfeiter in China affects not only my client but the guys threatening to sue us as well.

With this, I had my strategy: We have leverage as a result of this counterfeiter (as it would be in the other side’s best interest to allow us to keep the trademark so we would have the ability to go after these counterfeiters). “My suggestion is that we negotiate for the rights for 1-2 years of continued use and then we agree to abandon the trademark.” My client loved this idea and I agreed to a flat rate to handle this matter.

The Negotiations Begin….

I respond to their cease and desist by suggesting a conference call.

Round 1: Started out as friendly conversation and quickly became patronizing.

Them: Have you any experience representing clients in a trademark action of this magnitude?

 Me: Sorry, what do you mean by magnitude?

Them:  What I mean is that this is a fairly serious matter. A great deal of money could be at stake for your client.

Me: Yes, I read your letter but it is not clear that you have a valid infringement claim.


Them: We are authorized to release our claims if your client agrees to cease using its trademark  — which is deceptively similar to ours. We can draft up the papers by Monday.

Me:  With all due respect, the United States Patent and Trademark Office approved our marks 2 years ago.  We also have valid trademarks in 9 other countries. You had every opportunity to file an objection to our registrations before they were granted.  How many attorneys do you have over there anyhow? Isn’t someone responsible for tracking these things?

Tone change. Suddenly I was being taken seriously.

Them:  Look, Ms. Brillson, our clients are expecting us to settle this matter by the end of the month.

Me:  Gentlemen, I’d love to help you get this done.  Sorry – I have to run to another meeting and then I will be on travel until next Friday.  Shall we reconvene on Friday then?

Round 2:

Me: Good afternoon sirs…, Excuse me, I have an urgent call on another line, please hold. (I clocked a 6 minute billing increment and then rejoined the call).

Side note: find ways to crank up legal billing for other side; may encourage the other side to compromise more willingly.

Me: Thanks for holding gentlemen.  I conferred with my clients we agree to abandon the trademark within 3 years of today’s date.

Them: This is not an acceptable offer!  Are you sure you have properly advised your clients that large damages are at stake here?

Me: I will have to seek guidance from my clients before I can revise my offer. Unfortunately, the CEO is out dealing with some urgent business until next week.   You see, we just discovered that the product bearing the trademark name in question is being counterfeited. This is something that affects us all.

Sidebar note: We had just received news that our sales were down as a result of the illegal counterfeiter in china. We began talks with Chinese customs to attempt to seize these goods. See To Catch a Thief: Intellectual Property Rights in Action (BrillsonLAW, Dec. 12, 2012).

Round 3

Me: Gentlemen, I’d like to bring in your attention the grave issue we are addressing with respect to the Chinese counterfeiting I advised you of during our last call.  These goods bear our trademark – that same trademark you say is substantially similar to yours.  Surely your clients are concerned about this as well. They are currently selling to Big Lots throughout the US.

Them: Go on.

Me:  We are in the process of tracking down these counterfeiters and seizing their goods.  It is a costly and potentially lengthy process but one that will benefit us mutually.  We have been asked to make a large deposit with Customs in Hong Kong.  I would recommend that we split this deposit.

Them: We do not have any instructions from our client in this regard.

Me: Either way – it could take up to 2 years to stop this production completely. I think you can agree that any efforts on our part to curb this activity would be of mutual benefit.

Them: Possibily so.

Me:  Ok. It seems we are close to reaching an agreement.  The revised offer from my client is that they agree to abandon the trademark within 2 years.

Them: Our client will only agree to a 1 year extension.

Me:  Gentlemen, I understand what you are authorized to negotiate but didn’t we just agree that going after the counterfeiters in China would be mutually beneficial? 

Them: In theory, yes.

Me:   …and that it could take up to two years.

Them: I don’t see how this is relevant to our infringement claims.

Me:  Forgive me if I am missing something here?  Doesn’t my client need to have a valid trademark in order to pursue the counterfeiters?

Them: We will need to discuss this with our client.

Me: I will be on extended travel starting on Monday. As your clients had hoped to settle this by the end of the month, please advise them that if we do not have a deal in place by then our offer will be withdrawn. While we prefer to stay away from litigation, (only the lawyers win here, hey…chuckle. chuckle) we are pretty confident that our trademarks will be upheld.

Them: We will get back to you as soon as possible.

Round 4:

Them: Our clients have agreed to allow you to continue to use the trademark for 2 additional years.

Me: Great… 2 years from the date of the signed agreement.  Thanks, it’s been a pleasure.

            Them: Um…sorry…but….

Me: Gentlemen, sorry to cut you off but I have a call on the other line…would you like to hold?

Them: Um…We will draft up the agreement.

Take-aways: If you are the recipient of a cease and desist letter (which is normally the first step in alerting someone that that are potentially infringing on their intellectual property), here’s what to do:

Step One – don’t panic

Step Two – hire counsel with experience in intellectual property before doing anything

Step Three – break apart scenario and understand the big picture

Step Four – perform a cost/benefit analysis

Step Five – formulate a strategy and take control of negotiations

And remember…the underdog wins by using an entirely different strategy: identifying and exploiting their stronger opponent’s weaknesses. I look forward to hearing your thoughts and comments!



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