Internet disputes are often resolved through correspondence. But effective dispute-resolving correspondence often differs from what most people think of as “cease-and-desist letters,” “lawyer letters” or “nastygrams.”
There are some special formulas to successful cease-and-desist notes. Normally, I’d keep these techniques secret. But because there are signs that they are getting out, and actually being put into more widespread use, I will share them with you.
The key secrets are, believe it or not, efficiency, clarity, and honesty. And there is one other, even more explosive and counterintuitive, secret: You don’t have to be mean.
Let’s take these revolutionary concepts in order, with some recent examples.
First, efficiency. “Cease and desist letters” usually shouldn’t be sent by postal mail. Email is more efficient (and private services provide faster delivery and receipts). I’ve seen some of my demand emails answered, and the problems satisfied, within a matter of hours. And in many cases, for better efficiency, I draft messages for company executives to send directly to their counterparts, knowing that things sometimes get done better and faster that way.
In one noted recent case, the Anheuser-Busch brewery streamlined its legal demand by sending a costumed messenger in person, to deliver its demand, with a humorous context and tone, to a micro-brewery that A-B felt was infringing its advertising slogan. The messenger read from a hand-written scroll: “Dear friend of the crown, Modist Brewery Company, congratulations on the launch of your new brew: Dilly Dilly Mosaic Double IPA. We are duly flattered by your royal tribute. However, ‘Dilly Dilly’ is the motto of our realm. So we humbly ask that you keep this to a limited edition one-time-run only.”
The technique brought good publicity and a fast result for A-B. We live in an age of quick and direct communications, and legal communications need to be just as direct.
Next, clarity. An effective demand letter needs to be clear in its background, its legal authority, and, most importantly, what it demands. As a corollary, it needs to be well written and carefully proofread, for essential credibility purposes.
The best recent illustration for this principle, a letter from a lawyer for Alabama Senate candidate Roy Moore to Alabama Media Group, falls in the “what not to do” category. The letter is riddled with illiteracies (“Thus, do note this clearly, yet significant difference which your client’s publication(s) have failed to distinguish”) and attempted formalisms (“We do, therefore, alert you to the duties and notices provide herein”). It is even unclear in its demand, “We demand this circus cease and desist immediately.” The letter didn’t get results; rather, it got ridiculed.
Next, honesty. As with any legal communication, credibility in demand correspondence is essential. Demands that exaggerate claims are rarely effective. And on the response side, honest dialog, and even admissions, often lead to quick resolutions of disputes. In one recent case, for example, a photography accessory distributor published an immediate apology when it learned of an accidental instance of copyright infringement, thereby earning goodwill from its photographer customers.
Finally, consider the crazy concept that cease-and-desist correspondence doesn’t have to be mean. We all know the truism that direct and fair-minded appeals work better than mean accusations. Framing your legal demand as a “nastygram” runs counter to basic principles of human psychology.
Some of the best and most effective demand notes have been humorous. The granddaddy of these is Groucho Marx’s famous response to a demand from Warner Brothers movie studio over the Marx Brothers’ "Casablanca" parody. One excerpt: “What about Warner Brothers – do you own that, too? You probably have the right to use the name Warner, but what about Brothers? Professionally, we were brothers long before you were. … [E]ven before us, there had been other brothers – the Smith Brothers; the Brothers Karamazoff; Dan Brothers, an outfielder with Detroit, and ‘Brother, can you spare a dime?’”
Recently, Netflix followed in that humorous tradition when it found a pop-up bar in Chicago, which used the Netflix show "Stranger Things" as a theme. Rather than deliver a formal letter demanding an immediate takedown, Netflix’s lawyers sent a creative letter, using the language of "Stranger Things:" "My walkie talkie is busted so I had to write this note instead. I heard you launched a Stranger Things pop-up bar at your Logan Square location. Look, I don’t want you to think I’m a total wastoid, and I love how much you guys love the show. (Just wait until you see Season 2!) But unless I’m living in the Upside Down, I don’t think we did a deal with you for this pop-up.” The letter, which goes on to give the bar a six-week period to discontinue the theme, brought Netflix lots of compliments.
The Netflix letter is a great example of the best legal-demand techniques in action. It was prompt, clear, and honest, and it treated the recipient with respect and understanding. Maybe because of all the good publicity it received, it will prompt more writers of legal demands, and responses, to follow these techniques, and be more effective and successful.
But most likely, amid the continuing myth of “nastygrams” and the reluctance of many lawyers to depart from formalistic writing, your demand notes will stand out from the crowd if you follow these (formerly) secret techniques.
Mark Sableman is a partner in Thompson Coburn’s Intellectual Property group. He is the editorial director of Internet Law Twists & Turns.