In addition to identifying the specific activity, the letter should also outline the potential consequences of not complying with your request. Because the consequence is often a lawsuit, a cease and desist letter can be an effective tool to stop someone from doing something that is damaging to you or your business, without having to incur the cost of litigation. Cease and desist letters are used in a number of situations, but the following four are the most common.
Whether it's a copyright, trademark, or patent , your ownership of intellectual property gives you specific rights. This breach, called an infringement, may be stopped by sending a cease and desist letter, which should also state what action constitutes the infringement.
If you're being subjected to nonstop calls from a debt collection service or attorney, a cease and desist letter is an effective tool for getting them to stop harassing you by citing the federal Fair Debt Collection Practices Act, which governs how debt collectors must behave.
Under this law, if you send a letter to a debt collector asking them to stop contacting you, they must stop or face statutory penalties. Keep in mind that even though the letter may stop a debt collector from contacting you, it doesn't do anything to eliminate your debt, which you will continue to owe. Also, the letter only works with debt collection agencies and attorneys, not with in-house collections departments. When someone spreads rumors about you that are untrue, you or your business can suffer serious, irreparable harm.
Such rumors are a form of defamation called slander if the untrue statements are made orally and libel if they are in writing. If you're the subject of slanderous or libelous statements, a cease and desist letter can make the recipient retract what they've been saying or publishing.
Your letter should ideally state the specific defamatory statement, the reasons why it is untrue, and the damage you're suffering. Also give the recipient a deadline by which they must retract their statements before you will need to take legal action. A cease and desist letter may help put a stop to harassment. However, depending on who is doing the harassing, the letter may cause the harasser to react adversely, so you need to use your judgment before sending one.
If you feel a letter might serve to enrage your harasser, your best line of action might be to go directly to the courts for a restraining order.
It's a good idea to check the harassment laws in your state so you can accurately state your legal options. Once you've written your letter, the next step is to send it via certified mail so you have a record that it has been sent.
The optimal result, of course, is that the recipient of your letter stops engaging in the activity that's harmful to you. If they don't stop the activity as requested, you can assume that your cease and desist letter has made them fully aware of your intent to pursue further action. Contents 3 min read. Belle Wong, J. Connect … Read more. More US Law. However, there are some basic tips and rules to follow when sending a cease and desist to a potential trademark infringer that are separate from a harassment or FDCPA cease and desist letter.
Therefore, assuming you or your company has a valid claim to the mark by way of registration or common law, a cease and desist letter is a great place to start if there is indeed infringement occurring. By sending a cease and desist to the offending party you are claiming the validity of your intellectual property, and requesting immediate secession of their use of it. Upon receipt, an accused infringer may recognize its infringement, or reply with an opposing opinion as to why they are not liable for any wrongdoing.
In any case, you should include enough information to alert the opposing party of their violation. In contrast, you should not provide every detail regarding your protected material. For example, you certainly do not want to provide information that would allow the other party to modify their material so as to avoid liability. Additionally, it is highly advisable that you send the cease and desist certified mail in order to record the dates that you sent the letter and dates when the offending party received the letter.
That way, you will have evidence that the other party failed to respond to your requests. If it becomes apparent that the other party has received your cease and desist but they have not responded to it, you may have several options available to you. However, there are downsides to sending a cease and desist, as to cease and desist or not to cease and desist is often a complicated question.
While cease and desist letters are widely used as cost-effective trademark enforcement mechanisms, there are many instances where sending that letter is not the best option for your business. One must consider other options other than sending a traditional and aggressive cease and desist letter. One primary concern is that by sending a cease and desist letter, you may trigger a declaratory judgment action by the accused infringer.
In a declaratory judgment lawsuit, the accused infringer requests the court for a formal decree that it is not infringing on the rights of the trademark owner. Rather, call or send a respectful letter detailing your rights and requesting the other party to reconsider their use. In fact, there are even cases of businesses offering to pay for the design of a new logo and labels.
However, if they force your hand by not responding or complying with your request, you can and should take the more aggressive step of sending a cease and desist letter. So what happens if you receive a cease and desist? In short, relax and talk to an attorney.
If nothing else, consult the information available on LegalNature, and thoroughly research the claims that are being made in the cease and desist. Additionally, you should realize that a cease and desist is not legally binding, nor is it truly a legal document, so take a deep breath. This does not mean you should not take the letter seriously, because you should, but do not get so anxious you let the letter consume your life.
Also, keep in mind a cease and desist letter is not a guarantee of a lawsuit. While it is likely the person writing the cease and desist letter will say they will pursue legal action, and they may even genuinely have plans to do so, getting a cease and desist letter does not mean you will definitely be sued.
The truth is suing someone is extremely expensive, and most people both plaintiff and defendant would rather avoid it if possible. If you do in fact decide to hire an attorney which is highly recommended , do a little bit of homework, and read the letter thoroughly so you can get the right help. Additionally, prepare some factual information in order to better assist your attorney in defending your case—this also generally reduces their work, and results in a less expensive bill.
That is a natural response. Most likely, the letter will give a deadline for responding. Take advantage of the time. Attorneys have professional responsibility rules that govern communications with a non-attorney respondent. Determine what claims are being made. Read over the claims in the letter carefully.
Is the letter about copyright, patent, trademarks or trade secrets? A cease and desist letter can also claim unfair competition, defamation or breach of contract. The claims can overlap. For instance, trademark infringement can give rise to unfair competition claims. Or patent infringement can also involve breach of a patent license. If the claims involve a new employee, employment law issues can also be involved. Gather and preserve your records.
Gather up any documentation that exists about the claims, including letters, memoranda, creation notes, studies, etc. Talk to an attorney. Legal advice plays an important part in dealing with a cease and desist letter. Many cease and desist letters contain legal arguments and cites to statutes. A good attorney will review your records and the cited legal and authority to help determine whether the claims have merit.
Then, the attorney can help determine the best course for handling the cease and desist letter. Work with your lawyer to prepare a response. There is always a temptation to ignore the cease and desist letter that appears to have no merit. But that could be a dangerous path. In all but extremely rare circumstances, a response is necessary. Your attorney can help craft the appropriate response.
There are a number of ways to respond to a cease and desist letter. The response can also be a request for further information to evaluate the claim.
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