Received a Cease & Desist letter for Web Infringement (Help?)

[Marilynsita]

Hello i have a question if anybody could help us it would be great. We are a small business opening in South America (Ecuador) but we live in NYC at the moment. We recently had a webdesigner help us out with a website and we thought all the pictures and text were ok to post. Come to find out about 4 or 5 lines of our site are off another competitors website. Not knowing this until the owner of the actual website contacted us very angry, we immeadiately removed the text and re-worded the paragraph and changed the 1 or 2 pictures he said belonged to him as well. We then contacted the gentleman and told him we were very sorry that this had happened and that we removed all the things he wanted us too but he wasnt happy and kept threatening us. So a few weeks have passed and today i opened my email and i saw an email from the gentleman stating IMPORTANT ! I was like ok here we go, it stated a Cease & Desist for Web infringement from an Ecuadorian Lawyer who listed all the articles of law for Web Law and at the end it basically it said remove all content and give us $5,000 dollars for damages to his business. We dont even have a business up and running yet making money in Ecuador more the less to just give this guy $5,000 dollars, can anybody give us some advice ? Thanks

Marilynsita

 

[Michael Wechsler]

None of the following is "legal advice" and just discussion based upon my experience. The only way anyone can truly help you is by looking at all the facts that are attributable to the case and performing a full review.

Sorry to hear about your problem. I have dealt with this situation many times. According to the law, even innocent infringement is actionable although enforcement of the law is a whole different story. Receiving a demand to pay $5,000 from a lawyer in Ecuador doesn't scare me since if they wanted to take me to court, it's a long way from home. In addition, unless damages are enumerated (listed specifically), it may just be a scare tactic to get you to pay quickly.

1) When you knew about the potential problem with infringement, why didn't you get rid of everything?

2) Your web designer should "indemnify" you in the event there is a lawsuit or do what it takes to provide an infringement free site. This is why it is important to have a good contract for web design services - do yo have one?

3) Why don't you replace the entire site with something new and different? You may want to get your designer to do this (or perhaps use another web designer.)

If it were me, I might not bother replying and just replacing the items that obviously infuriated the web site owner. In the event confronted, you may always have a defense that you didn't remove the materials as an admission of any guilt, just that it was easier to avoid potential conflict by changing the whole site even though you believed there was more than a reasonable chance that your site was not infringing. For something this small, most of the time I have seen this blow over if the other party had most of the satisfaction they were seeking. Best of luck with your business and be more careful next time!