Key takeaways
- The first week decides the cost of everything that follows.
- Do not send an angry email, and do not ignore a letter with a deadline.
- Preserve dated evidence of your own use before you contact anyone.
- Escalation has rungs — a demand letter, negotiation, USPTO proceedings, then court.
Before anything else, do not do these
- Do not send a threatening message yourself. An unsupported threat can expose you to a declaratory judgment action, and it tips off the other side before you have evidence.
- Do not post about it publicly. Public accusations create defamation and tortious-interference risk and rarely change behavior.
- Do not ignore a cease-and-desist letter you received. Deadlines in those letters are usually soft, but silence invites a filed complaint.
- Do not immediately capitulate either. A large percentage of demand letters overstate the sender's rights.
- Do not delete anything. Once a dispute is foreseeable, destroying records is its own, worse problem.
If someone is using your mark
- Preserve evidence now. Screenshot the listings, ads, packaging, and social profiles with visible dates and URLs. Buy a sample if it is a physical product and keep the receipt and packaging.
- Establish your priority. When did you first use the mark in commerce, on which goods, and where? Do you have a federal registration, and does it cover these goods? Priority — not who registered a domain first — decides most of these disputes.
- Assess likelihood of confusion honestly. Similarity of the marks, relatedness of the goods, overlapping channels of trade, buyer sophistication, and any evidence of actual confusion. Two identical names in genuinely unrelated markets may lawfully coexist.
- Decide what outcome you actually want: they stop, they change their name over a transition period, they stay out of your channels, they pay, or a coexistence agreement.
- Then send a demand letter from counsel — measured, specific about the rights asserted, and calibrated to the outcome you want.
Platform takedowns are often faster than court
Amazon Brand Registry, Etsy, Meta, Google Ads, and domain registrars all have trademark complaint processes. A federal registration makes those processes dramatically more effective, and they can resolve a problem in days rather than months.
If you received a cease-and-desist letter
- Diary the deadline and acknowledge receipt if a lawyer advises it. Do not argue the merits in your first reply.
- Verify their rights. Pull the registration: is it live, what goods does it actually cover, and is the owner the entity writing to you? Registrations expire, get cancelled, and get overstated.
- Establish your own first-use date. If you were using the mark in your area before their rights attached, you may have prior common-law rights in that territory.
- Compare the goods and the customers, not just the words. Coexistence is common where the markets do not overlap.
- Weigh the business reality. Sometimes a negotiated transition and a coexistence agreement costs far less than winning.
The escalation ladder
| Step | When it fits | Typical outcome |
|---|---|---|
| Informal outreach from counsel | Small or accidental infringer, no bad faith | They change the name quietly; no public fight |
| Formal cease-and-desist letter | Clear rights, clear overlap | Compliance, a negotiated transition, or a counter-position you now know |
| Platform or registrar takedown | Marketplace listings, ads, social handles, domains | Removal in days when you hold a registration |
| TTAB opposition or cancellation | Their application or registration is the problem | Their filing is blocked or cancelled; no damages available |
| Federal court | Serious, willful, or commercially damaging infringement | Injunction and potentially damages, at significant cost |
Most matters end on the first or second rung. Our job is to get you the outcome you want at the lowest rung that will actually produce it.
Frequently asked questions
- What should I do first if someone is using my trademark?
- Preserve dated evidence of their use, confirm your own priority and the scope of your rights, and assess whether the goods and channels genuinely overlap. Then have counsel send a measured demand letter. Do not send threats yourself before those steps are done.
- Can I stop someone if my trademark is not registered?
- Sometimes. Common-law rights arise from actual use and can support a claim in the geographic area where you use the mark. Federal registration gives you nationwide priority, access to federal court, and far more effective platform takedown remedies.
- How should I respond to a cease-and-desist letter?
- Calendar the deadline, verify the sender's registration is live and actually covers the goods at issue, establish your own first-use date, and get advice before responding on the merits. Many demand letters assert more than the sender can prove, and many disputes end in coexistence rather than a rebrand.
- Does trademark infringement require intent?
- No. The test is likelihood of confusion among consumers, not the infringer's state of mind. Intent matters for remedies — willful infringement can expand what a court awards — but innocent infringement is still infringement.