Today, many brands utilize online marketplaces Amazon, eBay, and Walmart to reach a wider audience. However, they grapple with a persistent threat: unauthorized sellers. These disruptors tamper with pricing and quality, infringing on intellectual property and jeopardizing your brand’s integrity and genuine sales in the process.
So, how do you take them down?
Updates to the Digital Millennium Copyright Act of 1998, including the addition of the Copyright Alternative in Small-Claims Enforcement Act of 2020, set the stage for the new creator and online seller economy, with the aim of protecting intellectual property in this fast-paced market. With the help of features like the Copyright Claims Board - an alternative forum to federal court designed for all types of creators and users of copyrighted materials - can alone put enough pressure on unauthorized sellers to stop selling. Combined with a cease and desist letter looming on the horizon if these sellers fail to comply with DMCA, you’ll have in your toolkit one of the streamlined methods to take down an unauthorized seller.
DMCA Tactics: Empowering Brands Beyond
The DMCA equips brands with strategic tools to navigate unauthorized reselling:
Swift Content Removal (Section 512): Section 512 enables rapid removal of infringing content without resorting to legal battles. This provision facilitates compliance for service providers, swiftly safeguarding your brand's rights.
Anticircumvention Measures (Section 1201): Section 1201 serves as a barrier against technological infringement, protecting your copyrighted material from unauthorized access. It acts as a shield fortifying your brand's digital assets.
Data Integrity Protection (Section 1202): Preserving the accuracy of copyright details is pivotal. Section 1202 prohibits the dissemination of false copyright management information, ensuring your brand's content maintains its integrity.
If you’d like to hear us speak more about the DMCA, we recently covered the topic on our Legal Briefs podcast.
When to Consider a Cease and Desist (C&D) Letter
While the notice-and-takedown system is a formal process under the DMCA for copyright holders to request the removal of infringing content from online platforms, a cease and desist letter is a direct communication demanding an individual or entity to cease infringing activities, often preceding potential legal action.
Therefore, if the measures provided by the DMCA fail to sufficiently address the issue of unauthorized resellers—for instance, if infringing content persists despite the notice-and-takedown process or if the infringement extends beyond the DMCA's purview—a C&D letter might be the next step. This formal communication directly confronts the infringing party, demanding an immediate halt to unauthorized use before considering further legal actions.
The decision of when to send a cease and desist letter in relation to a DMCA notice can depend on several factors, including the severity of the infringement, the urgency of stopping the unauthorized activity, and your specific legal strategy.
Here are some considerations when deciding when to send a cease and desist letter:
Before DMCA Notice:
Advantages: A cease and desist letter sent before a DMCA notice can serve as an initial warning, giving the alleged infringer an opportunity to rectify the situation without involving legal authorities.
Disadvantages: If the unauthorized activity is severe or time-sensitive, sending a cease and desist letter before a DMCA notice might not provide the immediate action you need.
After DMCA Notice:
Advantages: If you've already issued a DMCA notice and the infringing activity persists, sending a cease and desist letter afterward can serve as a final warning before pursuing legal action.
Disadvantages: Waiting until after a DMCA notice may give the infringer more time to continue their activities, potentially causing further harm.
At the Same Time as DMCA Notice:
Advantages: Simultaneously sending a cease and desist letter along with a DMCA notice can convey a strong and unified message. It emphasizes your commitment to protecting your rights and may expedite resolution.
Disadvantages: It may be seen as a more aggressive approach, potentially leading to a quicker escalation of the situation.
Ultimately, the best approach depends on the specifics of your case and your goals. Consulting with legal professionals or a MAPP Trap compliance expert can help you determine the most appropriate strategy based on the circumstances. They can provide guidance on the timing, content, and potential legal implications of sending a cease and desist letter in conjunction with or separate from a DMCA notice.
Why Send a Cease and Desist Letter? The Pros
If you want to take down unauthorized sellers beyond DMCA, a cease and desist letter is the recommended method. Here are the upsides of taking this route:
Protection of brand identity: Unauthorized sellers can damage a brand's image by offering subpar products or engaging in unethical practices. Cease and desist letters can help maintain the brand's reputation overall by getting these sellers out.
Enforcement of IP rights: If your brand holds trademarks or copyrights, sending a cease and desist letter is a necessary step to protect these rights and prevent infringement.
Legal grounds for further action: Cease and desist letters establish a paper trail, which can be used as evidence in potential legal proceedings against unauthorized sellers.
What to Consider Before Sending a C&D Letter: The Cons
Before putting the mental and emotional energy into sending out C&D letters to unauthorized sellers, there are some nuances to consider.
To start, it’s important to understand that not every brand is able to send a C&D letter, depending on the platform and the seller’s relationship with that platform. This can make it challenging to fight for IP rights in such cases, so you’ll need to do your research before sending out that letter, as it wouldn’t be effective. It’s also important to make sure the product listings are using the brand’s IP. A site that uses its own images and product descriptions can more effectively play the 1st Sale Doctrine defense.
Some other downsides are:
Follow-up: Some unauthorized sellers may ignore cease and desist letters, requiring further legal action, which can be time-consuming and costly.
Temporary relief: While cease and desist letters can prompt online selling platforms to temporarily remove listings, unauthorized sellers may relist products once the issue subsides.
Possibility of legal retaliation: Unauthorized sellers might respond with counterclaims or lawsuits, necessitating legal resources and expertise.
How to Write a Cease and Desist Letter in 3 Easy Steps
If you’ve already tracked down the source of the seller that’s violating your IP rights, it’s time to cut them off. Using a solution like MAPP Trap can help you find those sellers so you can take the appropriate steps to take them down and protect your brand. When you do, it’s time to write your C&D letter.
Here’s how you can do it:
Step 1: Prepare Your Case
Before sending a cease and desist letter, you’ll need to put together your documentation. In order to do this, gather all the evidence you have of unauthorized selling, including screenshots, product listings, and purchase records (if known!)
Then, determine whether or not you’d like to consult legal counsel or the support of a software like MAPP Trap to help you. While you don’t need legal counsel, it’s advisable to work with an individual or company that has expertise in intellectual property and e-commerce law to ensure your cease and desist letter complies with legal standards.
Step 2: Write Your C&D Letter
Once you have everything prepared, it’s time to do the actual writing. MAPP Trap can provide you with C&D letter templates online, but you need to ensure that your letter includes all the necessary components.
Here’s a checklist to help you:
Choice of language: Craft your letter professionally, clearly stating your legal rights and the requested actions.
Sender information: State your brand's name and contact information.
IP rights: Specify the intellectual property rights being infringed, and cite the registration numbers.
Demand to cease infringement: Clearly state that the recipient must stop listing your products.
Deadline: Set a reasonable deadline for compliance, typically around 10-15 days.
Legal consequences: Mention the potential legal consequences of non-compliance, emphasizing the seriousness of the matter.
Contact for resolution: Provide a contact point for the recipient to discuss and resolve the issue.
Step 3: Follow Up
Once you send the cease and desist letter, you’ll want to follow up. Keep in mind that the unauthorized seller is not obligated to respond to your letter. Therefore, you’ll want to continuously check whether the unauthorized seller complies with your demands.
If they don't comply—and you haven’t done so already—you can escalate the matter to the domain hosting company. If this is unsuccessful, you can send another letter and eventually seek out legal support to issue a court order to the relevant party.
MAPP Trap: Streamlining the Process
If you’re feeling overwhelmed by everything that needs to go into stopping an unauthorized seller with a cease and desist letter, we’re here to help.
MAPP Trap is a powerful tool that can expedite the process of sending cease and desist letters and monitoring unauthorized sellers on online platforms. We do this by:
Automated monitoring: We continuously monitor online listings, quickly identifying unauthorized sellers.
Legal compliance: The platform offers pre-drafted cease and desist templates that adhere to legal standards, saving time and ensuring accuracy.
Efficient communication: Our interface enables easy communication with unauthorized sellers, expediting the cease and desist process.
Actionable data: MAPP Trap provides actionable data on unauthorized sellers, helping you make informed decisions on enforcement.
Ongoing monitoring: Beyond cease and desist, MAPP Trap offers ongoing monitoring to ensure that unauthorized sellers don't resurface.
Legal Escalation: MAPP Trap has partnered with a prestigious law firm that will mail letters on a brand’s behalf for a very reasonable price.
Ultimately, sending cease and desist letters to unauthorized sellers is an important and effective strategy to get them to take your products down that they don’t have permission to sell. Though there are pros and cons to consider, protecting your brand and intellectual property rights is often enough reason to go through the process. And, with the help of solutions like MAPP Trap, you don’t need to go at it alone.