Avis Abuses Its IP

Avis, the rental car people, has issued a B.S. cease and desist comment to a blogger.

When will businesses wake up to the fact that a trademark is not an exclusive right to use the mark, simply an exclusive right to use that mark to identify a particular kind of products?

Fred Grumman, Associate General Counsel of Avis, who posted the comment, particularly deserves blame for being a condescending abusive ignorant lout in making the comment that he did. Someone in his position should know better, and should care more about the bad image he is creating for his company.

While the online community has come together to identify and shame this kind of abuse, I think that the law should go further.

Anyone receiving a cease and desist letter should have a right to bring a declaratory judgment action against the sender, if the claim made in the cease and desist letter is not withdrawn when questioned by the recipient. The party bringing the cease and desist letter should be entitled to statutory damages (perhaps $5,000 per letter), as well as their attorneys fees and costs, in the declaratory judgment action.

It would not matter if some claim other than the one asserted in the cease and desist letter was valid. If the claim asserted in the C&D was invalid after consideration of the defenses raised in a request that the cease and desist letter be withdrawn, there would be an entitlement to statutory damages, attorneys fees and costs. This would appropriately chill bogus C&Ds, while presumably not chilling the kind of C&Ds that the senders genuinely intend to follow up with litigation if not complied with by the recipient.