Warning letters in DESIGN matters are quite frequent, since a design – contrary to a trade mark or patent – is an unexamined intellectual property right. This means that EUIPO or DPMA did not examine the requirements for a new design, such as novelty and distinctiveness during the registration procedure. This is then corrected through the market in time.
As frequently as warning letters are send out in design matters, as frequently they can be opposed successfully. Therefore, should you have received a warning letter, don’t hesitate to get legal advice and don’t be intimidated by the warning letter.
We analyze, if you indeed infringed an existing design and advise you on the prospects if you want to defend yourself against the warning letter.
In any case, even in cases of a warning letter in TRADE MARK matters, the often forwarded and stock-phrased declaration to cease and desist should be analyzed regarding its scope and the obligations assumed by it. If you indeed infringed a trade mark or design, we make sure that you oblige yourself only to what you are required and that you are not burdened with excessive claims.
In particular in a direct competition, it can be more favorable to be sued and have a judgment rendered against you than to provide the competitor with an out-of-court cease and desist declaration. We are happy to discuss this with you.