What’s an open letter complaining your website has been infringed and when do you need it?
This is one of potentially two first communications in our suite of templates covering the infringement of your website by someone else.
####When would you send it?
Before you send any correspondence offering to accept any form of settlement terms (such as those set out in our first letter complaining that your website’s been infringed). You may, of course, never decide to send any such additional settlement proposal letter, or
Potentially at the same time or very shortly after our first letter complaining that your website’s been infringed.If you've decided to include the settlement wording presented as a drafting option in that separate template letter, which is labelled as a ‘without prejudice’ letter (see more on what this means below), or
At any time between sending the first letter of complaint and sending the third letter of complaint, if you decided to include that settlement wording in those letters.
If you did not decide to include the settlement wording and without prejudice label in your first and subsequent letters…
You do not need to send this open letter... but you must ensure that the other template letters remove the without prejudice label and do not refer to settlement terms in them.
This open letter template does not contain the ‘without prejudice’ label contained in the first letter complaining that your website’s been infringed, or the optional settlement wording at the end of that first letter template.
That omission is very deliberate.
Because the open letter has no without-prejudice label, the open letter is not protected from disclosure in a court/formal claims process...
...while a ‘without prejudice’ letter (like the format of the first letter complaining that your website’s been infringed) is designed to be confidential to the parties.
This means that the without-prejudice enables you to offer the infringer the chance to agree and sign a commitment to cease the infringement, removing the need for you to take further action on a more formal basis – and, additionally, preventing the infringer from being able to disclose to a formal dispute resolution body the facts and terms of any settlement proposal that you put forward in the interests of getting a speedy and satisfactory resolution without having to involve the authorities.
(‘Without prejudice’ correspondence can offer all sorts of terms and potential compromises – in some cases, without diminishing any of your legal rights as an IP owner.)
This is an important protection for you.
While you will want to resolve the infringement as speedily and cost-effectively as possible, you may not be interested in offering a settlement approach (though according to Stobbs, it’s generally advisable to consider this), and/or you may not be able to reach a satisfactory resolution with the infringer.
If that’s the case, you'll want to be able to demonstrate to a court or formal dispute resolution body that you've made reasonable efforts to put the infringer on notice that they have contravened your IP rights and you've made your position very clear (i.e. there is no ambiguity about your ownership status and how the infringement has occurred).
The open letter provides that disclosable evidence on your behalf. It makes no mention of any settlement or without-prejudice proposals – and it should never do so. You want this letter to be capable of disclosure to a court/equivalent resolution body.
You don't have to send the open letter at the same time as the first letter complaining your website’s been infringed.
You can, in fact, send it at any stage between sending the first complaint letter and up to/until you send the third letter complaining that your website’s been infringed.
At the point you send the third letter, you should definitely send or already have sent this open letter too – it will have become apparent to you by then that your chances of reaching an out of court/claims body settlement are over and you’ll need to ensure you don’t lose further time corresponding about your rights in documentation that can be disclosed to the court.
There’s more guidance on this in our guide on how to handle someone infringing your website and in the guidance notes to the open letter template too.