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 Chilling Effects Clearinghouse > Defamation > Notices > Roca Labs C&D Notice (NoticeID 70211, Printer-friendly version

Roca Labs C&D Notice

February 25, 2011


Sender Information:
Roca Labs, Rocach Diet, Maabadot Rocach
Sent by: [redacted]

[redacted], [redacted], [redacted, US/Israel

Recipient Information:

[redacted, [redacted, United States

Sent via: Email
Re: Cease and Desist

To whom this may concern,

This email is sent on behalf of [redacted], who represents Roca Labs, Inc., a
Florida company that owns Rocach Diet, Maabadot Rocach.

On February 14, 2011, Mr. [rdacted] sent you a complaint, #579170, regarding
defamatory and trademark infringement postings on the website Melting Mama.
We have not heard back from you, or any other representative of Melting
Mama, nor has the web site been removed. In fact, the only action taken was
the comments have been blocked so that only the bad comments remain.

Please consider this letter formal notice that you are engaged in the
commission of various torts against residents of the State of Florida. Those
torts include, but are not limited to defamation, tortuous interference with
business, and trademark infringement.

Pursuant to the Florida long arm statute, and in accordance with the
decision of the Florida Supreme Court in *Internet Solutions Corp. v.
Marshall*, Roca Labs, Inc. can and will bring suit against you in Federal
Court in Florida.

Within three days of your receipt of this notice, you must:

(1) Cease and desist using or mentioning anything relating to
Roca Labs or its product/formula; and

(2) Publish a rescission of any and all comments and reference
made to Roca Labs or its product/formula;

We made other suggestions in the February 14th complaint and we are still
willing to find a cooperative way to solve this issue.

However, if you do not timely comply, Roca Labs will take the fullest legal
action available to it by law against you. Such action will include a
lawsuit or lawsuits in Florida where compensatory damages, punitive damages,
as well as attorney fees and costs will be pursued.

Please feel free to contact me with any questions.

If I do not hear from you before March 1, 2011, we will have no choice but
to proceed with legal action.

FAQ: Questions and Answers

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Question: What defenses may be available to someone who is sued for defamation?

Answer: There are ordinarily 6 possible defenses available to a defendant who is sued for libel (published defamatory communication.)
1. Truth. This is a complete defense, but may be difficult to prove.
2. Fair comment on a matter of public interest. This defense applies to "opinion" only, as compared to a statement of fact. The defendant usually needs to prove that the opinion is honestly held and the comments were not motivated by actual "malice." ( Malice means knowledge of falsity or reckless disregard for the truth of falsity of the defamatory statement.)
3. Privilege. The privilege may be absolute or qualified. Privilege generally exists where the speaker or writer has a duty to communicate to a specific person or persons on a given occasion. In some cases the privilege is qualified and may be lost if the publication is unnecessarily wide or made with malice.
4. Consent. This is rarely available, as plaintiffs will not ordinarily agree to the publication of statements that they find offensive.
5. Innocent dissemination. In some caes a party who has no knowledge of the content of a defamatory statement may use this defense. For example, a mailman who delivers a sealed envelope containing a defamatory statement, is not legally liable for any damages that come about from the statement.
6. Plaintiff's poor reputation. Defendant can mitigate (lessen) damages for a defamatory statement by proving that the plaintiff did not have a good reputation to begin with. Defendant ordinarily can prove plaintiff's poor reputation by calling witnesses with knowledge of the plaintiff's prior reputation relating to the defamatory content.

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Question: What is the purpose and effect of a cease and desist (C&D) notice in an alleged case of trademark infringement?

Answer: If a trademark owner believes someone is infringing his or her trademark, the first thing the owner is likely to do is to write a "cease-and-desist" letter which asks the accused infringer to stop using the trademark. If the accused infringer refuses to comply, the owner may file a lawsuit in Federal or state court. The court may grant the plaintiff a preliminary injunction on use of the mark -- tell the infringer to stop using the trademark pending trial.

If the owner successfully proves trademark infringement in court, the court has the power to: order a permanent injunction; order monetary payment for profit the plaintiff can prove it would have made but for defendant's use of the mark; possibly increase this payment; possibly award a monetary payment of profits the defendant made while using the mark; and possibly order the defendant to pay the plaintiff's attorney fees in egregious cases of infringement.

[back to notice text]

Question: What are the elements of a defamation claim?

Answer: The party making a defamation claim (plaintiff) must ordinarily prove four elements:

  1. a publication to one other than the person defamed;
  2. a false statement of fact;
  3. that is understood as
  4. a. being of and concerning the plaintiff; and
    b. tending to harm the reputation of plaintiff.
  5. If the plaintiff is a public figure, he or she must also prove actual malice.

[back to notice text]

Question: What is a trademark?

Answer: A trademark is a "mark" (word, phrase, symbol, design, mark, device, or combination thereof) used to identify the source of a product. Trademarks allow consumers to evaluate products before purchase.

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Question: What is trademark infringement?

Answer: Although different courts have different tests, the central concept is confusion in the marketplace. The law protects against consumer confusion by ensuring that the marks on the same or similar products or services are sufficiently different. A plaintiff in a trademark infringement case generally must prove 1) it possesses a valid mark; 2) that the defendant used the mark; 3) that the defendant used the mark in commerce, "in connection with the sale, offering for sale, distribution or advertising "of goods and services; and 4) that the defendant used the mark in a manner likely to confuse consumers.

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