Home Q&A Forum Can I ignore a trademark cease and desist letter if I believe my use of the mark falls under fair use?

Trademark

Trademark Cease And Desist

California

Asked on May 2, 2025

Can I ignore a trademark cease and desist letter if I believe my use of the mark falls under fair use?

I recently received a cease and desist letter from a company claiming that my use of their trademark infringes on their rights, but I believe my use of the mark falls under fair use as I am using it for commentary and criticism purposes. I am unsure if I should ignore the letter or if I need to take any legal action to protect myself.

Answers from 1 Lawyer

Answer

Trademark

California

Answered 411 days ago

Ignoring a trademark cease and desist letter is risky, even with a potential fair use defense. While trademark fair use for commentary and criticism is recognized, its application depends on specific factors like how prominently you're using the mark, whether consumers might be confused, and if your use is commercial. Ignoring the letter could lead to escalation, including a lawsuit where you'd need to defend yourself at significant expense. A better approach is sending a response letter explaining your fair use position and why your use doesn't constitute infringement. This demonstrates you're taking the matter seriously while asserting your rights. Consider consulting with an IP attorney to evaluate the strength of your fair use defense and craft an appropriate response that might prevent further legal action.

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Can I ignore a cease and desist letter for trademark infringement if I believe my use of the mark is fair use?

I recently received a cease and desist letter from a company claiming that my use of their trademark in my blog posts constitutes trademark infringement. However, I am using the mark in a descriptive manner to criticize and comment on their products, which I believe falls under fair use. I am unsure of how to proceed and whether I can ignore the cease and desist letter without facing legal consequences.

View Dolan W.

5.0 (466)

Dolan W.

Answered Dec 3, 2024

Hello! Thank you for posting this question. In your case, the other party may claim that you are infringing on their trademark, but proving it is a different case. The Lanham Act provides for a cause of action for infringement of both registered and unregistered trademarks. (15 USC Section 1114(1)(a); 15 USC Section 1125(a)(1)A).) The 9th Circuit Court of Appeals has laid out some elements to help determine whether it creates an infringement lawsuit. 1. The complaining party has to prove they have a valid, protectable trademark and that they own that trademark; 2. The complaining party must prove that a mark is similar, and it was used without the consent of the moving party in a manner that is likely to cause confusion among ordinary consumers as to the source, sponsorship, affiliation, or approval of the goods. The likelihood of confusion can occur at the time of the sale, when there is initial interest by a consumer, or even after the sale, if the confusion causes a consumer to no longer buy a service or product connected to the mark. The court considers things like the strength of the original mark, whether you are using it for some fair use purpose, the similarity, the proximity of the products and marketing channels, whether there’s actual confusion, the defendant’s intent, the quality of respective products, and the sophistication of the customers. (Polaroid Corp. v. Polard Elecs. Corp. 287, F.2d. 492, 495 (2d Cir. 1961.) So what this means is that it'd have to be litigated, but you can argue you are not trying to sell products or services using their mark, but rather you are using it for some other purpose, such as to educate people about their business practices. Best of luck!

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Jewelry Store

Trademark Cease And Desist

Texas

Asked on Aug 1, 2025

Need advice on trademark cease and desist.

I recently started a small business selling handmade jewelry under a unique brand name. However, I recently received a cease and desist letter from another company claiming that my brand name is too similar to theirs and infringes on their trademark. I believe my brand name is distinct and different enough, but I am unsure of how to respond to their letter and whether I should seek legal representation to protect my business.

View Darryl S.

5.0 (138)

Darryl S.

Answered Aug 26, 2025

Make sure you respond to the letter and meet any deadlines required. You can respond as you have here that you do not think you have infringed on their trademark. Call them and try to work out a solution. If you can work with them to reach resolution, that will be much easier. If this becomes a lawsuit, unless one side settles, the case will take a long time and have to go all the way to trial to decide if it is infringement. It's likely that the legal fees will get very expensive. You should seek legal counsel if you believe that is within your budget.

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Trademark

Trademark Application

California

Asked on Oct 21, 2024

Can I trademark a phrase that includes a commonly used word?

I am an entrepreneur looking to start a clothing brand, and I have come up with a catchy phrase that I believe would be a great fit for my brand. However, the phrase includes a commonly used word. I am wondering if it is possible to trademark this phrase, considering the presence of the commonly used word, and what steps I would need to take in order to do so.

View Dolan W.

5.0 (466)

Dolan W.

Answered Nov 5, 2024

Hello! Yes, you can trademark a phrase that includes a commonly used word, but there are specific considerations. In trademark law, the distinctiveness of the phrase as a whole is what matters. A commonly used word on its own might not qualify for trademark protection if it is way too generic or descriptive. However, when combined into a unique phrase that consumers could associate with your brand, it can become eligible for trademark protection. Here’s an example: Suppose your phrase is “Boldly You” for a clothing brand focused on self-expression. While “Boldly” and “You” are both commonly used words, the combination “Boldly You” is unique and could be distinctive enough for consumers to recognize it as representing your brand, especially if it isn’t merely describing the products directly. Nevertheless, make sure your phrase has a unique or distinctive character that is more than just descriptive of the clothing products you plan to sell.. Best of luck, Dolan

Read 1 attorney answer>

Trademark

Florida

Asked on Oct 25, 2021

I need help with a start up lawyer for a business

I plan on opening an indoor gun range in South Florida and need a lawyer with experience in this field.

View Roman V.

5.0 (1)

Roman V.

Answered Dec 7, 2021

Hello, I'd be glad to help with the trademark registration for your new business to protect the name, logo, or slogan associated with it. I am a US licensed trademark attorney and run my own trademark practice dedicated to all aspects of trademark protection. I have worked with clients in various industries, including software, hardware, manufacturing, food/beverage, e-commerce space, professional services, and many others. I offer a flat rate package of $700 per trademark filing (plus USPTO fees which are $250-350 per class), which includes all of the below. Search fee: $350 • a trademark search and clearance report to identify any potentially similar marks that would block a USPTO application • covers USPTO database, state registries, domain databases, social media sites, and general internet search for potentially conflicting registered trademarks (live or dead), and common law mark) • also includes follow up consultation with me to review and answer questions on the report Filing legal fee: $350 • draft and file the trademark application with the USPTO • includes drafting all applicable classes (client can choose which to include) • responses to minor USPTO office actions • likelihood of confusion and descriptiveness refusals are separate fee, based on details of the office action USPTO fees: • $250/class if you choose the USPTO pre-approved class descriptions (most of the time, this covers the client's products/services • $350/class if you write your own class description for unique products/services If you have any questions about the proposal or trademark process, I would be glad to set up a free 15 minute call to answer any initial questions. Thank you for your consideration.

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Trademark

Trademark Application

Texas

Asked on Jun 4, 2025

Can I trademark a phrase that is already being used by another company?

I recently came up with a catchy phrase that I believe would be a great brand name for my new business. However, upon conducting a search, I discovered that a different company is already using a similar phrase for their products. I'm wondering if it's possible to still trademark my phrase, considering the potential for confusion and infringement, or if I should come up with a different brand name altogether.

View Sara S.

4.9 (157)

Sara S.

Answered Jul 18, 2025

Short answer: probably not. It is best to consult with an experienced trademark attorney regarding this and the USPTO process for trademark usage.

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Can I ignore a trademark cease and desist letter if I believe my use of the mark falls under fair use?

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