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A cease and desist letter does not automatically signify a lawsuit. It is a warning that if illegal behavior does not stop there could be further penalties.9 min read
Updated June 23, 2020:
What Is a Cease and Desist Letter?
A cease and desist letter does not automatically signify a lawsuit. It is simply a warning about illegal behavior that lets you know that further penalties could follow if the behavior, such as patent infringement, doesn't stop.
Here are some ways it is possible to violate the intellectual property of another:
- Plagiarizing someone's work
- Using an invention without the right to access it
- Engaging in illegal or suspicious activity that involves someone's work
The first step that you can take to address these issues is to send a cease and desist letter. This letter puts the person in violation on notice that they are engaging in illegal use of a property. It advises them to stop, or further action will occur.
Other names for a cease and desist letter include:
- Cease and desist notice
- Cease and desist form
- Demand letter
- Stop harassment letter
All of these examples are simply formal letters warning the person to stop their illegal behavior.
What is a Cease and Desist Order?
A cease and desist order is different from a cease and desist letter. The main difference is in terms of legality. Letters have almost no legal standing. Orders do. A cease and desist order is granted by a court. It serves as a temporary injunction. The party that receives the order must stop what they're doing until a trial can be held. After the trial, a permanent injunction may be ordered.
Reasons to request a cease and desist order include:
Libel is when you are being attacked in print. Defamation is a verbal attack on your reputation.
What Are the Uses of a Cease and Desist?
There is a number of cases that might lead someone to issue a cease and desist. These include:
- Character assassination, libel, slander, or defamation
- Trademark infringement
- Copyright infringement
- Patent infringement (Design or Utility)
- Violation of non-competition agreement
- Harassment, including by debt collectors under the Fair Debt Collections Practices Act
- Breach of contract
A cease and desist can also be used to stop contributory infringement. This is when someone knowingly contributes to infringement, but did not actively participate in it. It is sometimes known as "secondary liability" or "contributory liability."
Trademark, Copyright, and Patent Protections
Trademarks, copyrights, and patents are the three major ways to protect intellectual property. Trademark and copyright apply the moment you are the author of something. They also apply when you begin using a specific brand, phrase, or trade dress in connection with your professional practices. Filing official paperwork for these is optional. However, registering your protections can hold great weight in court.
Patents, on the other hand, are more complex and expensive. They must be registered for protection. They protect inventions, physical creations, and the processes that go into their functioning.
It is illegal to say, either out loud or in print, things about other people that are not true or can be harmful to their reputation or ability to engage in gainful activity. You can say your opinion about someone. However, any false accusations can result in legal repercussions under civil law.
For example, saying, "I think that guy is a jerk," is your opinion. Saying, "I heard that guy engages in shady business practices and will rob you blind," is character assassination. This applies unless you can back it up with provable facts (and even that is risky).
Contracts and Agreements
Any time you sign a contract or agreement, you are bound by its strictures. The contract might require certain behavior from you. If you fail to abide by that behavior, you're in breach of contract. Say you agree, by contract, that you won't work for a competing business within a certain amount of time after you stop working with someone. You are in breach if you work for a competitor in that timeframe.
Harassment is repeated contacts or threats by other people that you don't want.
Some examples of harassment are:
- Someone calls you all the time
- Someone shows up at your front door repeatedly
- Someone makes mean comments about you in front of other people after you ask them to stop.
Debt collectors can behave in harassing ways as well. They might call or send letters incessantly and refuse to leave you alone. Any harassing behavior is illegal.
When Should I Send a Cease and Desist?
Use a cease and desist notice if you want to issue a formal warning to someone to stop doing what they're doing. This includes using your property, harassing you, or illegally using your trademarks.
Usually, but not always, a cease and desist is the first formal step following an informal notification. Many people first informally ask the infringer to stop what they're doing. If they don't, a cease and desist is the next step. It adds a weight of formality to your request. It can also serve as a step to begin further legal processes, if necessary.
A compelling reason to use a cease and desist is that it is much faster than beginning formal legal proceedings. It also often stops the offending behavior without the need to take it any further.
What Does a Cease and Desist Include?
Every notice of this type is different. In general, you want to include as many details about the violation as possible.
Every letter should include:
- Your name and contact information
- The name and contact information of the recipient
- A clear statement regarding the actions that you are ordering cease
- A demand to stop
- A warning about further legal action
- A time limit to comply (most people give them 10–15 days to respond)
If it's to stop a collections agency, include details about the debt they are trying to collect, the account number, and documentations regarding the harassment.
If it's for copyright, trademark, or patent infringement, include details about:
- The property
- The dates and circumstances of violation
- Proof that you own the property
- The consequences of future violations
If it's to put a stop to harassment, you should note:
- The date the situation began
- Information about any specific instances that have occurred
- A date they must respond to your letter before you take further action
Be as detailed as possible when documenting the harassment. Send your letter with delivery confirmation or require a signature on delivery to make sure that it was safely delivered and received.
What Legal Weight Does a Cease and Desist Notice Have?
In practical terms, a cease and desist has no real legal weight. However, it fulfills an important function in the legal process. It establishes that you have told the offender about their violation. They now cannot claim they didn't know they were in violation.
Such a letter places an informal injunction on the actions of the person in violation, who can then:
- Stop their behavior
- Challenge the validity of the letter
- Ignore it, and face the consequences of further legal action
Say the cease and desist is legitimate but challenged. The next step is a formal hearing to review the validity of the demands in the notice. The judge will determine if the defendant must stop the behavior. Failure to comply after that is punishable by law.
Why Should I Be Cautious About Sending a Notice?
Issuing a cease and desist notice under the wrong circumstances can cause legal troubles for the sender. If there are threats involved in the letter, it can amount to extortion, blackmail or other crimes. In addition, if the violation turns out to be false, the party receiving the letter can sue for a judgement. They can declare that there is no violation and this can turn into its own defamation complaint.
Can I Sue Without Issuing a Cease and Desist?
Yes, you can file a civil suit without writing and sending a cease and desist. However, issuing the notice has benefits. First, it can begin negotiations to settle the matter without a court battle.
Second, it puts the defendant on notice. It's more difficult to sue someone for doing something wrong, if they didn't know they were doing anything wrong.
Can My Attorney Refuse to Write the Letter?
Attorneys are bound by a professional code of ethics called the ABA Model Code of Professional Responsibility. This code forbids lawyers from presenting, threatening or participating in the issuing of any criminal charge in order to gain advantage in a civil case. This means that if your letter threatens specific legal repercussions, your attorney must:
- Believe that your charges are based on legal merit
- Be clear that the charges are related to a civil claim rather than a criminal one
- In no way attempt to influence any criminal proceedings.
If these three qualifications are not met, your lawyer may refuse to participate in the writing or issuing of the letter. This should raise potential red flags for you. An attorney is forbidden from pursuing frivolous claims or fraud. If they're not willing to write the letter, your claim may not be as solid as you think.
What If I've Received a Demand Letter?
If you've received such a notice, the first thing to do is determine if it's real. Check for:
- Legalese (language used on legal documents that is difficult to understand)
- Official stationary of the law firm
- Valid signature
Next, check to see if the letter is on behalf of a corporation or an individual. This will help to determine the weight that can be thrown behind it. Check to see if the letter includes legitimate legal citations. All of these are signs of an effective and legitimate letter.
Responding to a Notice
When you receive a cease and desist, you have a few options:
- You can agree to the letter's demands and cease whatever behavior the letter demands you stop.
- You can respond with a refusal or a request for more information.
- You can file for a summary judgement by the courts.
- You can ignore it and see what happens. Ignoring the letter is usually not the best course of action.
If you receive a letter, the following advice is essential moving forward:
- Do not talk about the letter to anyone but your attorney. This includes mentioning it online. Everything you post online is not only admissible in court, it is also almost impossible to erase.
- Keep any and all evidence to support your side of the argument. This includes copies of the letter.
- Think about whether complying with the letter will hurt your business or personal activities. Sometimes compliance is easier than a court battle.
- Contact your attorney immediately.
Responding to a Notice
After you speak to your attorney, draft a response to the letter. It is a bad idea to write this response yourself, especially if the original letter came from an attorney. If you say the wrong thing you can get yourself into more trouble.
For example, a letter that you write directly can be used as evidence should the case go to court. A response drafted by a lawyer, on the other hand, is considered a part of settlement negotiations and becomes inadmissible as evidence. Your lawyer can draft an appropriate response. This can help you to negotiate an acceptable settlement, avoid going to court, and protect you as much as possible.
This settlement could be permission to continue business as usual, to make small changes, or to delay implementation of the cease and desist terms so you can have the time to re-brand. Finally, if you aren't doing anything wrong, an attorney will know how to clearly state this and back it up to hopefully put the situation to rest.
Cease and Desist FAQ
- Do I Need to Hire a Lawyer for a Cease and Desist Letters?
No. You can send a cease and desist letter yourself. These letters are not legal orders. This means they can be sent by anyone. However, never send a threatening letter. This can harm your case.
- Do I Need a Lawyer for a Cease and Desist Order?
Yes. A cease and desist order is the first step in a lawsuit. A court of law must grant an order. An attorney best handles this.
- What Must Be Included in a Cease and Desist Letter?
There are a few items every cease and desist letter should include. First, explain your rights. Second, detail how your rights are being violated. Finally, you must include a command to stop the actions you are being harmed by.
- Do I Need to File a Cease and Desist Letter?
Not necessarily. It is possible to skip the letter to immediately file a lawsuit. This can depend on your claim level. Small claims can usually be handled out of court. Large claims may require a lawsuit. Also, if you file a suit without a letter, the court may ask why.
- What Are the Benefits of Hiring an Attorney?
Civil claims are very complex. This is where an attorney can help. They can write an effective cease and desist letter. An attorney can also give you advice about your claim. Hiring an attorney increases your chance of success.
There are many dangers involved with properly writing a cease and desist letter. It is inadvisable to try to write one yourself. It could cause you more harm than help.
Your best bet is to seek the services of a qualified intellectual property attorney. Such attorneys know the best way to write a letter that will achieve its purpose, avoid becoming legally problematic for the sender, and start the process in a positive way.
Similarly, if you receive such a letter, it's best to hire the services of an attorney before you issue any response. An attorney can ensure that you don't unintentionally incriminate yourself or create more legal problems, while also potentially arguing for a favorable outcome for you.
If you need any help with this difficult process, post your legal need here to get free custom quotes from the lawyers at UpCounsel. Many of them attended schools like Harvard Law and Yale Law and have an average of 14 years of experience. UpCounsel only accepts the top 5 percent of lawyers, so they are an excellent resource.