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Business Litigation Alert: "Cease and Desist, Please"

Can the Nice Guy Tactic Actually Work?

When you hear the words, “cease and desist,” polite is not the first thought that comes to mind. However, one cease and desist letter is making headlines for its overly nice tone.

The letter from Jack Daniel Distillery’s in-house counsel was in response to a book cover that bears a remarkable similarity to the trademarked Jack Daniel’s label. Instead of sending a threatening letter to the book’s author, the attorney for Jack Daniel thanked the author for his appreciation of their brand, and asked politely if he would change the image when the book was reprinted. The Jack Daniel company even offered to help pay for some of the costs of altering the cover before the next printing of the book.

When asked for comment, the company explained, “Our view has always been that a nice approach gets things solved faster.”

We know from the backlash that Chick-Fil-A received over its harshly worded cease and desist letter in January that the “tough guy” approach can backfire (see here). But, can this “nice guy” approach really work, or do you have to be harsh to be effective?

The answer lies somewhere in the middle, and there are a variety of factors that go into crafting the right tone for a “cease and desist” letter.

  • How serious is the violation? Is it the first time, or is this an ongoing concern?
  • How much is at stake? Is it a relatively small amount or is it significant?
  • How is it damaging your brand and how widespread is the impact? Is it a localized concern, or is this a national, or even international matter?

Knowing your audience and addressing each issue on an individual basis is key for effectively communicating your “cease and desist” message. Each violation is not equal, and each situation must be considered on its own. There is appropriate language for every situation. The key is knowing when to use the hammer and when not.

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