A cease and desist letter for trademark infringement tells someone using a confusingly similar mark that you own the rights, that their use is unlawful, and what you want them to do about it. Written well, it settles the matter without a lawsuit. Written poorly, it can invite the recipient to sue you first in a court of their choosing, or draw accusations of trademark bullying. Most of the difference comes down to preparation before you type the first sentence.
Know What Rights You’re Asserting
You don’t need a federal registration to send the letter, but the type of rights you hold changes what the letter can lean on. A mark registered with the U.S. Patent and Trademark Office carries a presumption of nationwide ownership and the exclusive right to use the mark for the goods or services listed in the registration.1Office of the Law Revision Counsel. 15 USC 1051 – Registration of Trademarks That presumption shifts the burden to the other side to prove the registration is invalid, and it gives your letter real weight.
An unregistered mark still has “common law” rights based on actual use, but those rights are typically limited to the geographic area where you’ve been using the mark and the specific goods or services you’ve offered under it. The infringement claim itself rests on Section 43(a) of the Lanham Act, which creates civil liability for anyone who uses a mark in commerce in a way likely to cause confusion about the origin of goods or services.2Office of the Law Revision Counsel. 15 USC 1125 – False Designations of Origin, False Descriptions, and Dilution Forbidden A letter built on common law rights needs stronger factual support because there’s no registration certificate to do the heavy lifting.
Gather Your Evidence Before You Draft
The letter is only as credible as the record behind it. Pull everything together before you write.
Your Own Rights
For a registered mark, look up the record in the USPTO’s Trademark Status and Document Retrieval (TSDR) system and note the registration number, filing date, and covered goods or services.3United States Patent and Trademark Office. Checking the Status of a Trademark Application or Registration For an unregistered mark, assemble proof of the date you first used the mark in commerce: invoices, website archives, packaging, advertising receipts, anything that pins down when consumers first encountered the mark.4United States Patent and Trademark Office. Dates of Use Priority goes to whoever used the mark first.
The Other Party
Identify the alleged infringer’s full legal name — individual or business entity — and physical address. Search the USPTO trademark database to see whether they’ve applied for or registered their own mark.5United States Patent and Trademark Office. Search Our Trademark Database A pending application or existing registration changes the strategy, because you may need to file an opposition or cancellation proceeding alongside the letter.
The Infringing Use
Build a dated record of every instance of infringing use you can find. Take screenshots of websites and social media profiles with visible dates, or use the Wayback Machine. Photograph products, packaging, and signage. Save marketing emails, advertisements, and business listings. This evidence makes the letter more convincing and preserves proof you’ll need if the dispute escalates.
Build the Likelihood of Confusion Argument
The legal core of any infringement claim is whether the other party’s use is likely to confuse consumers about who makes or sponsors the products or services.6United States Patent and Trademark Office. About Trademark Infringement The letter has to explain why confusion is likely, not just assert it. Courts apply a multifactor test that typically looks at:
- How closely the marks resemble each other in appearance, sound, and meaning
- Whether consumers would expect the goods or services to come from the same source
- The strength of your mark; well-known or highly distinctive marks get broader protection
- Any evidence of actual confusion among real customers
- Whether the other party knew about your mark and adopted a similar one deliberately
- Whether both parties sell or advertise through the same channels
- How sophisticated the buyers are; expensive purchases tend to involve more careful shoppers
The letter isn’t a legal brief, and you don’t need to win on every factor. But naming the strongest two or three is far more persuasive than a vague claim that the marks are “confusingly similar.” If the goods are identical and the marks look alike, say so. If you’ve received emails from customers mixing up the two brands, mention it. Actual confusion is among the most compelling evidence you can present.
What Goes in the Letter
Identify Yourself and Your Mark
Open by stating who you are and what you own. For a registered mark, include the registration number, the registration date, and the goods or services covered. For an unregistered mark, give the date of first use in commerce and the geographic area of your operations. Keep the tone professional. Aggressive posturing in the opening paragraph invites the recipient to dig in.
Describe the Infringing Activity
Spell out exactly what the other party is doing and why it infringes your rights. Cite specific evidence: the URL of the offending website, the product line carrying the similar logo, the social media account trading on your brand name. Tie those facts to the confusion factors that work in your favor. This section should read as factual and precise.
State Your Demands
Say clearly what you want. “Cease all use” is a start, but list the concrete steps: remove the mark from products, take down the site or specific pages, stop running advertisements, destroy infringing inventory, transfer any domain names that incorporate your mark. Vague demands invite partial compliance that doesn’t fix the problem.
Include a deadline for a response. Fourteen to thirty days is a common range, long enough to look reasonable and short enough to show urgency. Going below ten days can look unreasonable if the matter later reaches a court.
State the Legal Consequences
Close by stating what you’ll do if the recipient doesn’t comply. Under the Lanham Act, a trademark owner can seek a court injunction against continued use,7Office of the Law Revision Counsel. 15 USC 1116 – Injunctive Relief recovery of the infringer’s profits, actual damages, the costs of the lawsuit, and, in cases of willful infringement, up to three times the actual damages.8Office of the Law Revision Counsel. 15 USC 1117 – Recovery for Violation of Rights Courts can also award attorney’s fees to the prevailing party in exceptional cases. Naming those remedies signals you know your position. Skip theatrical threats about destroying the recipient’s business; stick to the remedies the statute actually provides.
Sending It and What Comes Next
Send the letter by certified mail with return receipt requested. The signed receipt proves the delivery date, which matters if you later need to show a court the infringer had actual notice. Keep a copy of the letter, the postal receipt, and the return receipt card in the same file as your infringement evidence. Some trademark owners also send a simultaneous email copy to close off any argument that the letter was lost in the mail.
Expect one of three outcomes. The recipient may comply, often by asking for a phase-out period rather than an immediate halt. Their attorney may respond with a counteroffer or dispute your claims. Or the recipient may ignore you, which strengthens your position in later litigation because it shows the infringement continued despite clear notice.
Risks That Can Turn Back on You
The letter is not risk-free for the sender. The most significant danger is a declaratory judgment action, a preemptive lawsuit by the recipient asking a court to rule that they are not infringing. A standard cease and desist letter is typically enough to establish the “justiciable controversy” a court needs to hear the case, and the recipient gets to pick the forum. If they’re in a distant state, you could end up litigating somewhere inconvenient. When that risk is high, some trademark owners file their own complaint before sending the letter so they control the choice of court.
The other risk is reputational. The USPTO has used the term “trademark bully” to describe an owner who uses enforcement measures far beyond what the law reasonably supports, targeting small businesses or individuals when there’s no realistic likelihood of confusion. Overly broad demands, threats against clearly non-infringing uses, or a pattern of aggressive letters can generate negative publicity. Before sending, honestly assess whether a reasonable observer would view your claim as legitimate. If the answer is no, the letter may do more harm than good.
Defenses the Recipient May Raise
Check these before you send. If the recipient has a strong defense, you’re better off knowing now than in a courtroom.
Descriptive Fair Use
Someone can use a trademarked term without permission if they’re using it in its ordinary descriptive sense rather than as a brand name. The Lanham Act protects this when the term is used fairly and in good faith to describe the party’s own goods, services, or geographic origin, not to trade on your brand identity.9Office of the Law Revision Counsel. 15 USC 1115 – Registration on Principal Register as Evidence of Exclusive Right to Use Mark If the alleged infringer is using your mark descriptively, your letter will likely fail.
Nominative Fair Use
Nominative fair use applies when someone uses your trademark to refer to your actual product, such as a repair shop advertising that it services your brand of equipment, or a review site comparing your product to competitors. The defense holds when the product wasn’t readily identifiable without using the mark, the party used only as much of the mark as necessary, and nothing suggested your sponsorship or endorsement.10Ninth Circuit District and Bankruptcy Courts. Defenses – Nominative Fair Use A cease and desist letter over nominative use is a quick route to looking like a bully.
Abandonment
If you’ve stopped using your mark, the recipient can argue you abandoned it. Under federal law, three consecutive years of nonuse creates a presumption of abandonment.11Office of the Law Revision Counsel. 15 USC 1127 – Construction and Definitions Token use designed only to preserve trademark rights, without genuine commercial activity, doesn’t count. Confirm you’ve been consistently using the mark in the ordinary course of business before asserting it.
Laches
If you knew about the infringement for a significant period and did nothing, the recipient may argue laches: that your delay was unreasonable and caused them harm. Courts have found delays as short as three years sufficient when the accused party invested heavily in the mark during that time. Laches doesn’t apply when confusion between the marks is inevitable, but it’s a serious risk if you’ve been sitting on your hands. That’s one reason to send the letter promptly after discovering the use.
Cancellation of Your Registration
A recipient facing a letter based on federal registration can file a petition with the Trademark Trial and Appeal Board to cancel the registration.12Office of the Law Revision Counsel. 15 USC 1064 – Cancellation of Registration Grounds are broad within five years of registration and narrower afterward, but cancellation remains available at any time if the mark has become generic, been abandoned, was obtained fraudulently, or was never used in commerce on some or all of the listed goods. If your registration has weak spots — goods you listed but never actually sold under the mark, for instance — a cease and desist letter can prompt the other side to attack them.
When to Bring in an Attorney
You can write and send the letter yourself. Nothing in the law requires attorney involvement, and for a clear copycat using a nearly identical mark on identical goods, a well-written letter from the business owner can work. But there are situations where legal help pays for itself many times over.
Hire an attorney when the claim involves any real complexity: marks that are similar but not identical, related but non-identical goods, an infringer likely to push back, or a situation where you may need to file suit. An attorney’s letterhead carries more weight because it signals you’ve already invested in the dispute. An attorney can also help you avoid the traps above — inadvertently triggering a declaratory judgment action, making demands that look like bullying, or asserting rights you can’t actually prove.