Do Lawyers Know Better Than To Send Mindless Cease & Desist Letters?

from the if-only-that-were-true dept

Recently, we posted about how Twitter's open attitude towards third parties and its trademark was probably helping the brand gain acceptance for its sense of openness and fairness. In it, we noted that lawyers were often quick to send cease & desist letters because they can, and not because it makes good business sense. Tom O'Toole takes issue with this claim:

Today, in 2009, all lawyers dealing with online media -- and that includes trademark lawyers -- are well-aware of the challenges of reputation management. They know that any C&D they send could wind up on a hundred Web sites, adorned with ridicule heaped upon their clients. They are able to make nuanced judgments about these things. They are able to balance the pros and cons of enforcing their clients' marks in each situation that may arise. Really, they are.

If only that were true. If it were, we'd have a lot fewer people sending in example after example after example of lawyers being way too quick to pull the trigger on such reputation damaging cease and desist letters. We still get multiple examples of this happening every week. I do agree that a lot more lawyers are familiar with this, but it's certainly not all.

O'Toole also makes an interesting separate argument that Twitter is somehow different than a company like Monster Cable, because Twitter is only involved in "data" whereby Monster Cable makes tangible products, and thus has no network effects. He also suggests that, because of this, Monster hasn't really done much harm to it's business, and that every use of the Monster mark somehow diminishes the value of Monster's trademark. I disagree wholeheartedly. I'm also not sure how this impacts my original claim that aggressive defense of trademarks can harm businesses. Monster Cable has clearly hurt its reputation with its trademark aggressiveness. Just do a basic Google search on monster cable and look at how many of the results near the top are negative, often talking about Monster Cable's aggressive trademark claims. If you don't think that's scaring off plenty of customers, you haven't been paying attention to how customers do research. I'd argue that the value of Monster's brand is diminished a hell of a lot more by everyone trashing the company for being so aggressive than if it had just stayed quiet and focused on building a good product.

Filed Under: business sense, cease and desist, lawyers