Sending a cease and desist letter and waiting for compliance is no longer enough to enforce trademarks for consumer-facing brands. Although public opinion now has a similar impact on enforcement decisions, legal analysis is still important. In just a few hours, a letter can be screen-captured, shared on social media, and transformed into a story. Even in cases when the infringement is minor, a single enforcement action can become the narrative.
Although brand owners have little control over who posts what online, they do have control over their approach. It is important to consider both the legal and reputational aspects of any enforcement decision. When there is a chance of public backlash, every B2C business should analyze the questions and factors included in this guidance before acting.
Start With the Streisand Effect
The phenomenon known as the “Streisand effect” explains what happens when an attempt to suppress something actually makes it much more noticeable. When legal action draws attention to a minor problem, it might become a widely reported story.
Similar examples can be found in contemporary IP issues. For example, attempts to restrict piracy websites have occasionally led to an increase in traffic as people become interested. The lesson is obvious. Enforcement has the power to bring attention to a problem that might otherwise go unnoticed. Brand owners should consider whether the enforcement action itself could increase awareness of the illegal use before taking any action.
Ask Whether the Threat Justifies the Risk
Clients frequently experience pressure to make a decision. Many fear that if they do nothing, their rights would be weakened or tolerance will be shown. But sometimes the best course of action is to do nothing at all.
A structured threat analysis based on three questions should be the first step in assessing blowback possibility.
1. How serious is the infringement.
Is the use confusing consumers. Does it risk dilution. Is it harming revenue. Is it associated with offensive or harmful content. Not every unauthorized use creates meaningful risk.
2. Does the scale of the response match the scale of the problem.
Public backlash often arises when there is a noticeable imbalance. A heavy-handed response to a low-level infringer can create a narrative that the brand acted unfairly.
3. Is enforcement necessary even if the brand takes a reputational hit.
Some infringements are serious enough that action is required despite the potential for criticism. If the matter threatens the core of the brand or carries business-critical implications, reputational concerns may need to be secondary.
Threat assessment helps clarify when enforcement is essential and when restraint may be more protective.
Understand Who the Infringer Is
Knowing the nature of the infringer changes the enforcement calculus. In most situations, infringers fall into one of three categories.
The uninformed user.
These are individuals or small businesses who are often unaware of trademark rules. They may respond positively to education and cooperative outreach.
The bad-faith actor.
This group intentionally trades on the brand’s goodwill or confuses consumers for gain. Enforcement is usually necessary, and the public typically understands why a brand must act.
The ideological infringer or “true believer.”
Some actors reject IP rights entirely. They may welcome a public fight and might intentionally provoke backlash. These cases carry the highest risk of negative attention.
Understanding which category applies helps the legal team design a response that is proportionate, defensible, and mindful of the likely public reaction.
Select the Right Enforcement Mechanism
Not all enforcement tools have the same public impact. Each option carries a different exposure profile.
Notice and takedown requests.
These actions are often quiet and low-risk. They can create a recurring cycle of removals and reappearances, but they are generally effective at reducing visibility without drawing attention.
Soft-tone letters or educational outreach.
For uninformed users, a helpful explanation of trademark rules can solve the problem without escalating tensions or encouraging public sharing.
Formal cease and desist letters.
These are more visible and more likely to be posted online. Tone is essential. A measured, respectful letter is far less likely to be framed negatively.
Litigation.
Filing suit guarantees attention and may escalate the issue. It is appropriate for high-risk or high-value matters but should be weighed carefully when dealing with individuals or creators with a public following.
Choosing the right tool requires balancing legal strategy with reputational foresight.
Bring Communications Into the Process Early
Early involvement of communications teams is one of the most crucial measures. Professionals in communications may help forecast how a story might develop, offer timing advice, prepare messaging in case it gets public, and make sure the business is not taken by surprise.
Additionally, a lot of firms want to avoid being perceived as trademark bullies. Collaborating with communications teams lessens the likelihood of a viral backlash and helps build a firm but fair reaction. Early legal and communications alignment puts brands in a better position to control public perceptions should the issue come to light.
Consider the Likely Public Narrative
Once enforcement begins, the brand no longer controls the story. The public interprets the issue based on what is shared and who shares it. Before taking action, consider:
• Is the recipient an individual or small business that might generate sympathy?
• Does the brand have existing perception challenges that could influence how the story spreads?
• Would the enforcement action reinforce existing stereotypes about the company?
• Is the company prepared to defend its decision if the story circulates online?
• Could the infringer frame the situation in a way that shifts sentiment against the brand?
If the anticipated narrative creates more harm than the infringement itself, the enforcement approach may need to be reconsidered or softened.
When Restraint Is the Strategic Decision
There are situations where choosing not to act is the best protection for the brand. Restraint is appropriate when:
• The infringement is minimal
• The infringer is harmless or unaware
• The infringer is clearly seeking attention
• Enforcement would elevate the issue far beyond its original footprint
• The cost to reputation outweighs the benefit of action
Trademark owners still need to maintain consistent enforcement, but consistent does not always mean aggressive. It means measured, thoughtful, and aligned with long-term brand health.
Trademark enforcement is essential, but so is protecting brand reputation. Today, the legal implications and the public implications of enforcement are inseparable.
By evaluating the threat level, understanding the infringer, choosing the right response, involving communications teams early, and anticipating public narratives, companies can protect their intellectual property while managing the risk of blowback. When approached strategically, enforcement becomes not just a legal action but a reputational decision.
