Legal Question in Intellectual Property in Texas

Website Cease & Desist Question

I have a one page website that has a positive product review on it for a popular, well known, trademarked acne skin care cream. I am not an authorized affiliate of the products official website but I do have an ad that links to the same product being sold on ebay, of which I am an affiliate and make money from if someone buys it from there. I have a disclaimer that my site is no way affiliated or endorsed by the company in question and a link to the products official website. I got a cease & desist letter saying ''my website is considered trademark infringement and unauthorized distribution under the law. You are using XXX Brand in a trademark manner, you clearly are targeting and linking to only XXX Brand products, and by providing links to third-party sales you have in effect become an unauthorized distributor (for which you presumably profit from), which may subject you to additional legal liabilities. In order to avoid further legal action against you, we demand that you immediately cease these infringing actions and adhere to the demands set forth.'' I changed the link to ebay to include all acne products but they are saying I am still violating their trademark. What can I do?


Asked on 7/18/09, 5:57 am

3 Answers from Attorneys
Sarah Grosse Sarah Grosse, Esquire

Re: Website Cease & Desist Question

I suggest you get a second opinion.

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Answered on 7/19/09, 9:37 am
Charles Williamson Charles J. Williamson, Attorney At Law

Re: Website Cease & Desist Question

You can stop using the trademark, which includes the name of the product. Just because you have something up which gives positive commentary on the product doesn't mean that you're allowed to use the product's name and/or trademark. Just because you now mention other products as well doesn't mean you are free to use the product's name and/or its trademark. While this may seem to you to be counterintuitive, its a correct application of trademark law. This is why there are such entities as "authorized dealers," "authorized wholesalers/distributors," etc., etc., etc. Even though this is probably not what you wanted to hear, I hope its of help to you.

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Answered on 7/18/09, 6:07 am
Bruce Burdick Burdick Law Firm

Re: Website Cease & Desist Question

I am a trademark attorney licensed in TX, MO, and IL as well as a registered patent attorney. I have a second opinion. I think there is a way to accomplish the sale of the product via ebay and to tout it on your website and still comply sufficiently with the letter to get the trademark owner off your back. You may indeed need to stop using the trademark, but not necessarily. Partly this depends on where you got the product you are selling on the ebay site. If it is legitimate product obtained legitimately, I can help you fashion a way out of this mess you have gotten into. The main thing is to comply with the letter sufficiently to satisfy the trademark owner and yet to still sell the product. Contact me and I will assist you. Bruce Burdick, The BURDICK Law Firm

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Answered on 7/21/09, 2:51 am


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