Yesterday my girlfriend alerted me to a post over at one of the food blogs she follows. The blogger had received a cease and desist letter from a major brand alleging trademark infringement. After receiving legal advice the blogger has decided to abide the cease and desist letter despite a relatively strong legal position.
The post goes on to complain about the cease and desist tactic. However I believe her response is one of the very reasons this tactic continues to be used where it shouldn’t be. Instead of asking the brand to justify its position the blogger has acceded to their outrageous demands. The attorney who sent the demand can report beak that he successfully defended the brand without mention the potentially devastating brand tarnishment that occurred by treating a popular food blogger as a criminal.
We the people are stuck in a legal catch-22. We continue to receive cease and desist letters and take down notices which border on ridiculous. However fighting them can put oneself in an untenable position. Having to fight a legal war against a large corporation with significant legal resources. As a result the cease and desist letters and take down notices become more frequent as attorneys can cite their high success rate.
Until someone fights back and can get a judge to award a major penalty for sending unwarranted cease and desist letter corporate attorneys can continue to blindly send out unjustifiable take down notices and claim victory. The sad truth is that no one is winning. The brands that the attorneys represent lose major PR and brand loyalty every time one of these letters is sent to someone it shouldn’t have been.
There is hope though! United States District Judge Jeremy Fogel, denied a motion to dismiss in a lawsuit filed by Stephanie Lenz against Universal Music alleging misrepresentation pursuant to a DMCA take down notice. Fogel also held that copyright owners must consider fair use before sending take down notices.