[Enter Your Name]
[Enter Your Address]
XXX
XXX
Attorney at Law
XXX
XX
Re: SETTLEMENT TERMS
Respectfully,
I received your response to my Answer and Affirmative Defenses. In your response, you state
that I am in willful infringement of your client’s intellectual property rights. You further state
that Sonic the Hedgehog has achieved widespread recognition and reputation globally. You then
proposed a Settlement for $100.
Contrary to your assertions, my innocent infringement defense limits the amount of damages you
state in your response. It is settled law that a court may consider a copyright infringer’s innocent
intent, as well as potential harm to the public, when fashioning the remedy for infringement. See
Cadence Design Systems, Inc. v. Avant Corp., 125 F.3d 824, 829 (9th Cir.1997); Abend v. MCA,
Inc., 863 F.2d 1465, 1479 (9th Cir.1988). See also XXXX, Inc. v. Symantec Corp., 19 F.
Supp. 2d 1070, 1079 (N.D. Cal. 1998). I was not aware, and still insist that I did not infringe
your client’s copyright. I further maintain that I had no reason to believe that any of my acts
constituted an infringement of the copyright.
In response to your averment that your trademark has received worldwide recognition, I maintain
that you have not proven such recognition. One who claims the infringement of trademark must
prove the reputation of the mark. See Adidas v OHIM — Shoe Branding Europe (T‑145/14,
EU:T:2015:303); see also Ferrero Deutschland v OHIM, C‑108/07 P, EU:C:2008:234,
paragraphs 32 and 33. You have not provided proof of the reputation of your client’s mark. The
reputation due to your mark cannot be inferred from any factor. Instead, proof of reputation is
done by conducting an independent market survey. Therefore, since no proof of reputation has
been done, you are not entitled to the damages you state in your response.
In light of the foregoing, I make the following proposition in response to your settlement offer:
1. You close the case;
2. Contact Etsy to get our account back
In return of your fulfillment of the aforesaid terms, we will not sell any of the products in dispute
again.
Sincerely,
_________________
[ENTER NAME]
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