CEASE & DESIST Advice for Affiliates/Marketers

You just threw down a couple thousand dollars and invested hundreds of hours of hard work setting up a new website/campaign.. You have high hopes and your very excited to roll out your new baby… And then,.. DUM DuuM Duuuuuuummmmm… you receive an email from someone telling you to shut down AND you must hand over your domain to them.. Who else feels woozy?

Odds are likely that if you have been in this industry for a minute, you have received a cease and desist email or two, and if you haven’t, you can almost guarantee you will. Here are some tips on how to handle the situation.

NOTICE: I am NOT a legal adviser, and have not had any legal training or consulting, this information is based purely on my experiences. I will NOT be held responsible for any ill effect caused by you reading this post, or taking this advice.

CALL THEIR BLUFF!
Unfortunately, internet marketing is a VERY competitive & cut throat industry loaded with ruthless “affholes” (AFFiliate a**HOLES). I have received quite a few Cease and Desist emails from other marketers in my day and most of them were completely full of it, trying to use scare tactics, threatening legal action for using trademarked terms and what have you. This scare tactic is not only used in internet marketing, but all business. Below I embeded a video of Domino’s Pizza CEO Dave Brandon using a competitors Cease and Assist letter against the sender in a commercial. I am a fan of Subway, but I have to give Domino’s marketing team props, as they did their due diligence (consulted their legal team) and strengthened their campaign even more by not backing down, and publicly announcing it. Great move Domino’s!

CEO (Dave Brandon) CALLS THE BLUFF and oven bakes a Cease & Desist letter

DO YOUR RESEARCH!
Research the person/business who sent the notice, and try to find out if he or she may actually be a threat. Do your best to find out if this person has sued others and if they had any clout at all. If the notice you received is actually legit, the sender will include information about the trademark; like a reference number, date of trademark, and info about what the trademark covers. Usually if the trademark in question is a popular word or slang term, your in the clear, as the US trademark office will usually only issue trademarks of commonly used words to huge companies/conglomerates. Use http://www.uspto.gov/trademarks/process/search/ as a guideline, and if you think you may have a serious threat on your hands, contact a “Trademark Search Service” BEFORE contacting a lawyer.

WAS IT AN EMAIL OR LETTER?
My general rule of thumb is, if it’s an email, forget about it. If it is an actual paper letter WITH delivery confirmation, you know the threat is much more serious.

INDIVIDUAL OR LAWYER?
Who sent it to you? If the notice came from an individual, odds are pretty likely it’s a mere scare tactic. If they already contacted a lawyer, then the notice would be sent from their lawyer – if indeed the notice was from a lawyer, it may be smart to pause your activity and get some real legal advice, OR adapt, and that takes me to the next bullet point.

IF THE NOTICE IS SERIOUS, SIMPLY ADAPT!
Back in the hayday of viral facebook campaigns, (when anyone could make bank from using simple viral scripts and a good headline), I ran a campaign that targeted farmville users. My domain had the trademarked term “farmville” in it, and used the logo and term frequently in my landing pages content. (I know, I know.. that was wrong of me.. lesson learned.) Anyway, I received a letter from Zynga requesting I take down my website. It was a serious threat as they were going lawsuit crazy at the time, and it simply wasn’t worth the risk.. Soooo I adapted. Even tho I was getting 150,000+ hits a day from links posted all over facebook, I decided to disable my domain. I then purchased a similar domain (without a trademark infringement) and pointed it to the same directory on my server. I then modified the design and removed any terms, logos and color schemes that were in question. Even tho I lost out on TONS of traffic, and had to completely start over, my business model never changed… I was still targeting the exact same audience, with the exact same offer, BUT this time around, I didn’t have to worry about legal issues. Ohh, did I mention that the new landing page went viral too? well at least until facebook killed all my links… (ahh I miss the good ole days!).. My point here… just adapt and you will probably end up doing just as well.

NEVER FORFEIT YOUR DOMAIN NAME!
Let me repeat…
NEVER FORFEIT YOUR DOMAIN NAME!
If the notice you received is requesting that you hand over your domain, completely ignore that request! One of the reasons people send out Cease and Desist letters, is so that they can aquire domains that are already receiving traffic. They usually say things like “I legally own the domain because it has my trademarked name in it” – a completely false statement. If your domain has a trademarked term within it, AND you do comply to cease activity, you can still own the domain as long as you do not use it to compete with the trademark holder. If it’s not possible for people to confuse your landing page with a trademark holders brand, you are completely fine. Also, you cannot resale that domain.. but don’t give the Cease and Desist sender your traffic.

I really hope I was able to give you guys some good info here.. As I stated above, I am NOT a lawyer or legal adviser, and I could be wrong in some circumstances. If you have had any experiences in this topic, or want to call MY bluff, comment below, I would love to hear what you have to say.

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