Trademark Infringement Cease and Desist Notice - Form

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WITHOUT PREJUDICE SAVE AS TO COSTS
Delivery: ________

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Dear Sir or Madam,

RE: CEASE AND DESIST — TRADE MARK INFRINGEMENT AND MISLEADING OR DECEPTIVE CONDUCT

§1. Capacity in which we write. We act in this matter as the proprietor of (or on behalf of the proprietor of) the trade mark described below. This letter is sent in accordance with the Trade Marks Act 1995 (Cth), the Competition and Consumer Act 2010 (Cth) (including the Australian Consumer Law set out in Schedule 2 thereto), and the law of passing off. It is also written having regard to the obligations of genuine steps under section 4 of the Civil Dispute Resolution Act 2011 (Cth).

§2. Our trade mark. We are the owner of the following trade mark (the "Trade Mark"):

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2.1. The Trade Mark is registered with IP Australia under registration number ________, in class(es) ________, with a registration/filing date of ________.

2.2. We have continuously used the Trade Mark in the course of trade since at least ________, and have expended substantial sums in promoting and building the reputation and goodwill associated with the Trade Mark, thereby establishing our priority in and the substantial value of the Trade Mark.

2.3. We have used the Trade Mark for the following purposes and in the following locations:

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§3. Your conduct. It has come to our attention that you are using the following sign in connection with your goods and/or services (the "Infringing Sign"):

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3.1. The Infringing Sign is being used in connection with the following goods and/or services: ________, and we first became aware of such use on or about ________.

3.2. The Infringing Sign is substantially identical with, or deceptively similar to, the Trade Mark, and is being used in relation to goods and/or services that are the same as, or of the same description as, or closely related to, those for which the Trade Mark is registered.

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§5. Australian Consumer Law and passing off. Your conduct also constitutes:

1. misleading or deceptive conduct, or conduct likely to mislead or deceive, in contravention of section 18 of the Australian Consumer Law;
2. the making of false or misleading representations as to the sponsorship, approval, affiliation, or commercial origin of goods or services, in contravention of section 29 of the Australian Consumer Law; and
3. the tort of passing off, by misrepresenting a connection between your goods and/or services and our business.

§6. Evidence. Please refer to the documents enclosed with this letter, which provide examples of the conduct described above.

§7. Demands. We demand that, within ________ days of the date of this letter, you provide us with your written undertaking that you will:

1. immediately and permanently cease and desist from all use of the Infringing Sign, and any other sign that is substantially identical with or deceptively similar to the Trade Mark, in connection with any goods or services;
2. withdraw, recall and remove from sale, distribution, advertising and display (including from any website, social media account, domain name, signage and packaging) all goods and materials bearing the Infringing Sign;
3. cancel, transfer or amend any business name, company name, domain name or social media handle incorporating the Infringing Sign;
4. deliver up or destroy, at our election, all infringing materials in your possession, custody or control, and provide written confirmation that you have done so;
5. provide a full account of all sales, revenue and profits derived from your use of the Infringing Sign; and
6. pay our reasonable legal costs incurred in connection with this matter.

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§9. Reservation of rights. Nothing in this letter constitutes a waiver of any of our rights or remedies, all of which are expressly reserved. The omission of any right, claim or remedy is not a waiver of it. This letter is not intended to set out all of the facts or matters on which we may rely.

§10. Correspondence. Please direct all further correspondence in relation to this matter to the contact details set out above, marked for the attention of ________.

Yours faithfully,

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for and on behalf of ________

Enclosures: ________