Before a Cease-and-Desist Arrives
Business Fire Drills — Episode 3
Transcript (cleaned)
All right. You sit down to work. You are excited. You're energized. You've got a full work session that you are thrilled to be getting to do. You open up your email and — oh crap, what the heck is that? You see a subject line that says "immediately cease and desist your use of [insert your brand name, insert your program, insert something that is near and dear to you and that your business makes money on]." I'll give you a moment. Your nervous system is going to launch into the stratosphere of a gazillion emotions instantaneously. And that is why I am in your ears today.
This is a Business Fire Drill, and we are going to run the drill before the fire happens, because this business moment is completely predictable, and your panic is optional. I'm attorney Tamsen Horton. I have been putting out fires since 2011, and I am remarkably good at it — and I care about it immensely. I care about you. I care about your business. I do not want you getting burned. I do not want your business getting burned. I want nothing around you burning down.
So today I want to help you run through the drill of before a cease and desist arrives on your doorstep. This is not a unique occurrence — not like spotting Halley's comet once every 75 years. Depending on your brand and your business, you may need to frequently send out cease and desist letters to people. And depending on your process for running your business, you may be on the receiving end of one.
So what is a cease and desist? It literally means stop what you're doing now — you stepped on the sender's legally protected toes in some way, shape, or form. This depends completely on the facts and circumstances. I'm going to use trademark infringement as my example, because it's the most common and it will stick with you.
A trademark infringement claim usually means you've come too close to using a name, a tagline, or something consumers recognize as belonging to someone else — because that recognition can be a color, a scent, a sound. I can't open a shipping company and use UPS brown. I can't open a jewelry store and use Tiffany blue. I can't start a TV station and use the NBC Peacock chime. A trademark is simply a way for consumers to recognize the source of goods or services when they're shopping out in the world.
When you're dealing with this, the alarm is going to hit you — it's not a slow smoldering fire, it lands in your inbox and hits you upside the head. When it does, it's really important that you know the drill to run: D-R-I-L-L.
D — Don't react. If you need to give yourself a sticky note that says "Tamsen says don't react, close my computer now," do that. We're not going to fire off a reply. We're not going to immediately shut anything down. We are definitely not going on social media — not posting in a Facebook group of 10,000 of your closest entrepreneurial friends, not posting in a mom group, not posting in a Mighty Networks group. We are posting nowhere.
R — Record everything. Keep the email, keep the letter. The fire drill will tell you what to go get screenshots of — their brand, whether this is a legit claim, going to the correct databases to find the records of the legally protected toes you're being accused of stepping on. We're also going to have a filing system where we keep this — the fire drill kit in the show notes comes with instructions for exactly how to set that up using MCPs, so you don't have to figure it out yourself.
I — Identify the real risk. Is this a legit claim? Does someone really have legally protected toes that you did in fact step on? I ran into this early when I came into the online business world in 2011–2013. A little backstory: I didn't go to law school the normal way. I was working in collegiate trademark licensing on the business side, got frustrated doing the work of attorneys without being one, and at age 32 someone told me — if you want to go toe-to-toe with the lawyers, you have to be a lawyer. So I said fine, I'll go get a law degree, I'll see you in three years. And I did.
What matters in identifying the risk is knowing what's a legit claim and what isn't. Building a brand or tagline around a word is very different from using that word once in a sentence in your copy. There are trigger-happy business owners who send cease and desists for nothing — usually because their law firm is billing them for sending it. That's a whole other episode. But in the "I," you're figuring out: is this verifiable?
L — Lead with calm. Know exactly how to respond, what's appropriate to say, and how not to jeopardize or limit your possible paths forward based on how you reply to the sender.
L — Lock in the lesson. Make sure this fire doesn't happen again. Send yourself emails when you come up with ideas. Build the habit of running the appropriate legal background checks as part of your creative process, so you aren't stepping on someone's legally protected toes in whatever arena it might come up in.
We run the drill before the fire comes. I always like to have a fire extinguisher — you probably have one in your house, or a fire blanket. Why? So if a fire happens, you've got something to use. Our business is no different than where we live. The fire extinguisher here is: before a cease and desist arrives, put into place your response letter format, know exactly what to do, know exactly where to go to check if a claim is legit, know who to contact. A fire happens, you grab the extinguisher, you know how to use it — and we put the fire out. We minimize the damage. That's the entire point.
If you already run fire drills at home, at work, or your kids run them at school, we're just going to run them for your business too. Business moments are predictable. Your panic is entirely optional. We run the drill when it's a beautiful day, blue skies, birds singing — that's when we run the drill. Ideally we never live through a house fire. I never have, and I still have a fire extinguisher and fire blankets, because nobody plans for the fire itself — they plan for the fact that it's predictable. These things happen. When they're predictable, we can plan. And that is entirely what I'm here to help you do.
