Everything You Need to Know About Cease and Desist Letters!
A cease and desist letter is the first step to inform an offending party with notice of their infringing activity.
This letter provides you with a notice date if a lawsuit is filed and prevents the party from claiming ignorance. Once the party has received the letter and refuses to stop, the next step is legal action.
At the Leavitt & Eldredge Law Firm, our specialty is in intellectual property cases.
Whether you’ve received this letter or would like to send it, we have included some information to assist you. Let’s begin.
- What is a Cease and Desist Letter?
- Common Uses for a Cease and Desist Letter
- The Different Types of Cease and Desist Letters
- How Do Cease and Desist Letters Work?
- What are the Benefits of Utilizing Cease and Desist Letters?
- How to Write a Cease and Desist Letter?
- Can Anyone Write a Cease and Desist Letter?
- When is it Appropriate to Send a Cease and Desist Letter?
- How Serious is a Cease and Desist Letter?
- The Risks Involved Using Cease and Desist letters
- Best Practices for Using Cease and Desist Letters
- What are the Penalties for Violating a Cease and Desist Letter?
- Can my Attorney Refuse to Write This Letter?
- Will an Attorney or Law Firm Protect Me From This Letter?
- Difference Between a Cease and Desist Letter and Cease and Desist Order?
- Can You Sue Without a Cease and Desist Order?
- What To Do If You Receive a Demand Letter?
- What are the Steps in Issuing a Cease and Desist Letter?
- Conclusion For Cease and Desist Process
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WHAT IS A CEASE AND DESIST LETTER?
A cease and desist letter notices an infringing party of their infringement and the possible consequences if they don’t stop.
Any necessary legal documents should be attached to ensure notice.
It has the legal effect of establishing a notice date for future litigation. If the individual or business continues to infringe after that date, a further letter or legal action must be pursued.
COMMON USES FOR A CEASE AND DESIST LETTER
There are numerous common uses for a cease and desist letter. Because a letter is a formal request that a party stop any offending behavior, they are versatile. Individuals frequently use a letter to stop debt collectors after receiving a debt collection letter.
They are also utilized by an intellectual property lawyer to stop ongoing copyright infringement or trademark infringement.
THE DIFFERENT TYPES OF CEASE AND DESIST LETTERS
Because a cease and desist letter is adaptable, there are multiple different processes. A letter can be sent to signal to another party that you intend to pursue legal action.
They can also take the form of a demand letter, telling the other party to cease their infringement. A threatening letter like this asserts your legal rights and signals that you will pursue further action if necessary.
There are different types which include;
- Breach of Contract – are sent to another party when they either fail to comply or overtly breach a valid contract.These are used to notify another party that they have broken the terms of an agreed-upon contract. This allows that party to either cure the breach or finalize the end of the contract.
- Copyright Infringement – provide legal notice to a party that they are infringing on your copyrighted material.This will allow that party the opportunity to cease infringement, if they did not intend to infringe. It will also serve as evidence that the other party was given notice if they continue to infringe.
- Debt Collector (Creditor) – inform a creditor to halt communications pertaining to debt collection.These notices can be used to attempt to fend off debt collectors regarding debt collection. These inform the debt collectors that they must stop contacting you.This can be an effective tool in ensuring your collectors engage in fair debt collections practices. They also notify a debt collector that they should stop communicating regarding debt collection.If a debt collector persists regarding debt collection, contact an attorney. If necessary, such a letter may be used as evidence in acquiring a restraining order.
- Defamation (Slander) – inform another party that they are defaming you with false statements and must stop.This allows for a showing of intent. If the party continues to defame you after receiving your letter, this serves as evidence that they intended to.
- Harassment – provide legal notice to a party that is engaging with you inappropriately, telling them they must stop.As with other variations, if the party continues to engage in the behavior, the letter helps to establish intent.
- Intellectual Property – are used to provide legal notice to a party that they must stop infringing on your protected work.This can help prevent future violations of your intellectual property rights.
- Non-Disclosure (NDA) – notify a party that they have breached an NDA and must stop to avoid a lawsuit.
- Response – allow the recipient of a cease and desist letter to answer allegations and communicate their intent to stop.
- Trademark Infringement (logo, name, etc.) – provide notice that the party must stop infringing your trademarked logo or name.
- Patent Infringement (utility or design) – provide notice to a party that they must stop infringing on your patented material or idea.
HOW DO CEASE AND DESIST LETTERS WORK?
A cease and desist notice works as a formal step notifying another party of your legal intent. It also provides legal notice of potential future legal action pertaining to an alleged violation of your rights. If the recipient ignores the letter, you can then file suit (a criminal or civil case).
You can ask the court for a remedy, including a temporary injunction, permanent injunction, monetary award, restraining order, settlement negotiations, etc.
A criminal or civil claim in court will be costly. It might be preferable to send further correspondence warning of the legal repressions of continued infringement.
If you receive a desist letter, cease the alleged infringing action and contact an attorney immediately for guidance. They can assist you in avoiding the involvement of a court.
WHAT ARE THE BENEFITS OF UTILIZING CEASE AND DESIST LETTERS?
There are numerous benefits of utilizing a cease and desist letter. Because they can be utilized to warn an infringer of potential legal consequences, they can help the parties avoid litigation.
A party may provide a desist letter answer indicating that they will cease infringement, preventing the need for further legal action.
If the individual or business continues their illegal activity, the fact that they were on notice indicates willful infringement. The individual or business will not be able to claim ignorance of your intellectual property rights.
HOW TO WRITE A CEASE AND DESIST LETTER?
The question of how to write a cease and desist letter is best left to intellectual property attorneys. Your attorneys will be able to pinpoint the best course of action and provide vital legal services.
They will also be able to respond if you receive such a letter and help prevent a lawsuit.
CAN ANYONE WRITE A CEASE AND DESIST LETTER?
Anyone can write and submit a cease and desist letter. You can write your own cease and desist letter, if you feel you need to. However, it is best that an attorney assist you to ensure that the desist letter is legally binding and enforceable. They will also be able to draft any necessary accompanying legal document if necessary.
WHEN IS IT APPROPRIATE TO SEND A CEASE AND DESIST LETTER?
It is appropriate to send a cease and desist letter when you have become aware of infringing activity.
If your intellectual property or that of your business is being infringed, it is appropriate to send a letter. This can help prevent the need for the involvement of a court.
HOW SERIOUS IS A CEASE AND DESIST LETTER?
A cease and desist letter can be serious. If you are engaging in infringing activity, the letter establishes notice.
You will not be able to claim unintentional infringement if you continue to infringe. This will increase your overall damages if you are found guilty of infringement.
THE RISKS INVOLVED USING CEASE AND DESIST LETTERS
There are some risks involved in using a cease and desist letter. You might invite unwanted legal scrutiny from another party with your notice.
BEST PRACTICES FOR USING CEASE AND DESIST LETTERS
The best practices for using a notice like this include establishing that the infringing individual or business has noticed. This will ensure that they cannot claim ignorance of their infringement.
A demand letter should be delivered via certified mail, return receipt requested. When you receive the receipt, file it away, anticipating potential litigation.
WHAT ARE THE PENALTIES FOR VIOLATING A CEASE AND DESIST LETTER?
When assessing the penalties for violating a letter, clients frequently ask, “is a cease and desist letter enforceable?” “Can a desist letter create a legal duty on my part?”
While it will not create a legal duty to cease, it does provide you with legal notice. If you receive notice and continue to infringe, this helps to establish willful infringement. If the opposing party proves this, your legal damages will increase.
CAN MY ATTORNEY REFUSE TO WRITE THIS LETTER?
An attorney can refuse to write a letter of this nature. It is always recommended that an attorney write your letter, given their understanding of the law. However, they are not obligated to do so by law if they would rather not take your case.
WILL AN ATTORNEY OR LAW FIRM PROTECT ME FROM THIS LETTER?
An attorney or law firm can assist you in protecting yourself regarding a cease and desist letter. They will provide you with necessary legal guidance regarding your alleged infringing actions. Reach out to an attorney as soon as possible for guidance and any requisite legal documents.
DIFFERENCE BETWEEN A CEASE AND DESIST LETTER AND CEASE AND DESIST ORDER?
The different between a letter and a cease and desist order comes down to legal effect.
- anyone can write one;
- requests that the recipient instantly stop all current activity;
- wait for a response from the recipient;
- if the recipient replies and chooses to stop all alleged infringements, then decide if this case is closed. However, one can take legal action at a later date;
- if the recipient does not reply, then legal action may be pursued (make sure you have an attorney ready to act).
- can only be written by a court;
- requires the recipient to cease any infringing activity immediately;
- recipient responds to the court directly; and
- recipient may not legally continue their activity.
CAN YOU SUE WITHOUT A CEASE AND DESIST ORDER?
You can sue an infringer without a cease and desist order. While the notice that a letter would afford is helpful, it is not required.
If your attorneys determine that you have a claim, be it common law or otherwise, you can file it at will.
Ensure that you retrieve information necessary for your case before contacting a law firm to simplify the process.
WHAT TO DO IF YOU RECEIVE A DEMAND LETTER?
If you receive a demand letter, immediately contact a law firm. They can assist you in avoiding legal claims and unnecessary legal proceedings with a response.
WHAT ARE THE STEPS IN ISSUING A CEASE AND DESIST LETTER?
When writing and sending a letter like this, there are a few necessary steps to ensure effectiveness. The language should be as firm and forceful as possible. The recipient must feel that they must cease their activity immediately.
STEP 1 – DETERMINE WHO WILL CREATE THIS LETTER
If you identify a need for a letter, contact a law firm so that an attorney can assist you. Attorneys will have the experience and expertise necessary to help you avoid unnecessary legal repercussions.
STEP 2 – INCLUDE ALL RELEVANT EVIDENCE
Ensure that you have all relevant information ready for inclusion in the letter. If your trademark is being infringed, include your trademark registration number. Avoid any default settings or boilerplate language. Tailor your letter to your specific legal scenario with compelling evidence.
STEP 3 – INCLUDE LANGUAGE INDICATING THAT YOU WILL FOLLOW UP WITH LEGAL ACTION
To ensure that the recipient knows that this is a pre-suit notice, include language notifying them as such. Ideal language communicates that, if the party continues, a legal proceeding will be pursued.
Example: “If we do not receive a reply with certification that you have complied with the demands of this letter, I have been instructed to make a note of your non-compliance and initiate a lawsuit seeking damages.”
We recommend you bold this statement and underline it.
If you are sending a notice for an intellectual property, make sure to add the registration number. The infringer must know of the registration to have been given notice with legal power regarding the infringement.
STEP 4 – SEND THE LETTER AND WAIT FOR A RESPONSE
When sending the letter, ensure that you have acquired the correct address. For a business, be sure to look up its registered mailing address or the address of its registered agent. You can find this information through your state’s Secretary of State office online.
The letter should be sent via Certified Mail through the United States Postal Service. This allows you to receive a return receipt proving that you send the letter. It will also prove that the entity received the letter and signed for it. This receipt and the entity’s acceptance can be used as evidence that they reviewed your letter. It also can be used to show that they understood the nature of their actions if they continue afterwards.
Once the letter has been drafted and sent, you should wait until the deadline named in the letter expires. While you wait, it is best to confer with legal counsel regarding potential next steps.
STEP 5 – REACHING SETTLEMENT AND ACTION TO TAKE IF CEASE AND DESIST LETTER IS IGNORED
While the circumstances leading to a letter can be emotional, initiating litigation is not something to be done flippantly. Lawsuits can be very costly and unpredictable. Once the party responds, it is ideal to reach a settlement regarding use and potential payment. If you can avoid litigation, that is ideal.
If the infringer does not respond within a set number of business days, a lawsuit may be necessary. Your attorney will work with you to determine any relevant civil or criminal charge for the other party.
CONCLUSION FOR CEASE AND DESIST PROCESS
Understanding the process of sending, receiving, and responding to a cease and desist letter is important. We hope the information in this blog has given you a better understanding of the process.
However, if you still have questions or concerns, you can call us, and one of our legal secretaries will assist you in getting started.
If you are ready, then please fill out the form below and provide all of your detailed information. We will reach out to you to continue forward movement on helping you get started.
Nothing in this blog will constitute legal advice. For more information on cease and desist letter cost, please fill out the form below or contact us.
CAN A CEASE AND DESIST LETTER BE CONSIDERED HARASSMENT?
Unless a letter is sent for frivolous purposes, it should not be considered harassment.
AM I REQUIRED TO RESPOND TO A CEASE AND DESIST LETTER?
While you are not required to respond to a cease and desist letter, it is recommended. If your business is accused of infringement regarding site work or otherwise, a response is vital to avoid a lawsuit.
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