5. Cease-and-Desist Letters As discussed above, there are several steps medical device companies s

5. Cease-and-Desist Letters
As discussed above, there are several steps medical device companies should take to police trademarks and prevent third parties from unauthorized use of their trademarks. When a medtech company discovers that one of its trademarks is being infringed, filing a trademark infringement lawsuit should be an immediate consideration. Delays in enforcing trademarks can jeopardize the outcome of the trademark infringement litigation and should be avoided.

Whether a potential infringement is identified through monitoring by a watching service, online monitoring, or notice from an employee, often the next step is to send a cease-and-desist letter to the infringing party. A cease-and-desist letter outlines the third party’s misuse or infringement and requests the infringing use of the company’s trademark stop immediately.

A cease-and-desist letter is equivalent to a demand letter and is a cost-effective way to enforce a company’s trademark rights. A typical cease-and-desist letter usually is drafted by a trademark attorney and includes information such as the details regarding the company’s ownership of the trademark; the infringing party’s infringing use; and outlines the possible causes of action for damages and injunctive relief. Potential causes of action include trademark infringement, unfair competition, dilution and cybersquatting under federal and state laws. After the details are identified, the letter will request the infringing party cease all infringing action and also may include specified action the infringing party must take.

Cease-and-desist letters usually will request the third party cease all infringing action and respond within a specified time period. Although a prompt response may be received, cease-and-desist letters sometimes are ignored by the third party. If a third party does not respond to the letter from trademark counsel and the unauthorized trademark use continues, filing a trademark infringement lawsuit may be the next step. Before taking any action, a medical device company should consult a trademark attorney to carefully assess all options to enforce its trademark rights. Trademark disputes are expensive and can drain valuable monetary and time resources from companies with little or no economic upside other than the right to continue to use the trademark.

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Medical device companies must take proactive steps to prevent internal misuse as well as unauthorized use of the marks by third parties. By instituting a comprehensive trademark policing strategy, firms can minimize the potential loss of trademark rights, and maximize the value of its trademarks as a valuable business asset.