Okay, so you received a cease and desist letter, huh? Well, first thing’s first. Don’t panic! A cease and desist letter does not automatically mean that you’re being sued, or that a lawsuit is pending. It is merely a clear warning that you have been partaking in illegal actions and it further informs you that if you do not stop that behavior, further consequences may follow. Typically, if you receive a cease and desist letter, it means that you have infringed upon the rights and properties of someone else. Some ways that you may have violated the intellectual property of others would be to:
- Plagiarize their work
- Use an invention without the right to do so
- Carry out illegal activity involving someone else’s work
Intellectual Property Cease and Desist Letters What You Need to Know
On the other hand, if you feel someone else is doing these things against you, the first step you should take to begin addressing the issue is to send a cease and desist letter. The letter puts the person or company that is violating your rights on notice that they have engaged in illegal and unsanctioned use of property. It advises them to stop doing so immediately, otherwise further action will take place. Essentially, a cease and desist letter is a formal letter warning someone to stop their illegal activity.
Difference Between Cease and Desist Order and Cease and Desist Letter?
The primary difference between a cease and desist letter and a cease and desist order is legality and authority. Letters have virtually no legal standing or backing. Order, however, most certainly do. This is because a cease and desist order is granted by a court, not an individual. It functions much like a temporary injunction. The party that gets the order must stop whatever it is that they are doing until a trial is held, at which point, a permanent injunction may get ordered. Libel and defamation are two of the most common reason why you would want to request a cease and desist order from a court of law. Libel is when you are attacked in print. Defamation is when you and your reputation are attacked verbally.
When Can You Use a Cease and Desist Letter?
There are many situations that may lead someone to issue a cease and desist, including:
- Libel, slander, character assassination or tarnishing, and defamation
- Trademark infringement or copyright infringement
- Design Patent or Utility Patent infringement
- Violating a non-competition agreement
- Harassment, even by debt collectors operating under the Fair Debt Collections Practices Act
- Breach of Contract or Conflict of Interest
Lastly, you should be aware that a cease and desist can be used to stop contributory infringement. This is when a person knowingly contributes to infringement, but does not actively participate in it. It’s also referred to as contributory liability or secondary liability.
Protections for Copyrights, Trademarks, and Patents
As previously mentioned, the three major ways of protecting your intellectual property are to register trademarks, copyrights, and patents. Trademarks and copyrights usually come into effect the moment you create a work, or when you begin to use a specific phrase or brand in association with your professional work. It is entirely optional to file official paperwork to get them recognized by the government, however, it is worth doing so because they get far more protection when they are registered. Patents, on the other hand, must be registered for protection and the process for their registration is much more convoluted. It calls for protection for inventions, physical creations, and their processes.
Why Should a Cease and Desist Notice Be Used?
You’ll want to send a cease and desist notice if you want to formally warn someone to stop doing something. This includes utilizing your property, harassing you, or illegally using your content. It also serves the important role of being a step to begin further legal processes, should the need arise. Another compelling reason to send a cease and desist is that it’s a lot quicker than formal legal proceedings; oftentimes, it can stop the problematic actions and behaviors without needing to go through the long and costly process of trial.
What Should a Cease and Desist Letter Include?
To start, make sure you are clear in what it is you want to stop and include as many details of the violation as possible when sending a cease and desist letter. You’ll want to include:
- Your name and contact info
- The name and contact info of the recipient
- A clear statement stating what actions you are ordering cease
- A demand to stop
- A warning about further legal action should the violations continue
- A time limit to comply, typically no more than 2 weeks
What Should be Included in Cease and Desist Letters for Copyright, Trademark, or Patent Infringements?
If the cease and desist is regarding copyright, trademark, or patent infringement, include details about:
- The property
- The dates and instances of violation
- Proof that you are the owner of the property
- The consequences of future violations of your property
Does a Cease and Desist Letter Have Any Legal Authority?
Technically, a cease and desist letter has no legal backing or authority behind it; for all intensive purposes, it is merely a letter requesting that someone stop doing something. However, it does serve an important function in the legal process. This is because it establishes that you have made the offender aware of their violation and have tried to get them to stop, which is crucial because they no longer can claim to be unaware of the violation. Effectively, a cease and desist letter places an informal injunction on the actions of whoever is in violation of your rights, to which they can then choose to:
- Stop their illegal actions and behavior
- Challenge the validity of the letter or the truth of its claims
- Ignore it, and face the consequences of further legal action
In the event that the letter is legitimate but gets challenged, the next step is a formal hearing to review the validity of the claims and the demands in the letter. A judge will say whether the defendant needs to stop their actions and behavior. After that, failing to comply is punishable by law.
Be Caution of What is Included in a Cease and Desist Letter
The catch with all of this is that sending out a cease and desist letter can backfire on the sender in some situations. For instance, if there are threats in the letter, then that can be seen as extortion, blackmail, and other crimes. Additionally, if the violations and accusations turn out to be untrue, then the party who received the letter can counter-sue for judgement and damages. They can do so by declaring that there is no violation and treat the cease and desist letter as its own defamation attempt. So, basically, just be very careful with what you are saying in your letter.
Can I File a Civil Suit Without Sending a Cease and Desist Letter?
It’s worth mentioning that you can file a civil suit without ever having to write up and send a cease and desist letter. In other words, a cease and desist letter is not a prerequisite to suing someone. However, there are some key advantages to sending the letter as it can begin negotiations to settle the issue without a drawn out court battle. Also, most importantly, it puts the violator on notice. This makes it hard very for them to claim ignorance should the situation escalate to a lawsuit. It’s more difficult to sue someone for something if they were never made aware that what they were doing was illegal. By sending the letter and requiring signature upon delivery, you can at the very least demonstrate that you made attempts to reach out and inform the violator that they are infringing upon your rights.
What Should I Do if I Received a Cease and Desist Letter?
When you get a cease and desist letter, you do still have several options, including:
- Agreeing to the letter’s demands and stopping whatever problematic behavior the letter outlines
- Responding with a refusal or a request for more information
- Filing for a summary judgement by the courts
- Ignoring it and seeing what happens (though, to be clear, this is the worst thing you could do)
What Can I do if I Received a Cease and Desist Letter?
Regardless of what you end up doing, here are some essential pieces of advice if you have received a cease and desist letter:
- Do not speak about the letter to anyone but your lawyer. This extends to online mentions as well; not only is everything you post online admissible in court, but it’s also nearly impossible to ever erase.
- Keep any evidence you have to support your side of the issue, including a copy of the letter.
- Consider whether complying with the requests of the letter will hurt your business or personal transactions. In some situations, complying is better than court.
- Contact your attorney immediately and provide all the information you have about the matter.
- If you want to draft a response to the letter, do not do it yourself.
Do I Need a Lawyer to Write a Cease and Desist Letter?
You don’t necessarily need a lawyer to write a cease and desist letter for you. You can write it yourself, since these letters aren’t legal orders. However, don’t ever send a threatening letter as that can harm your case and seek legal counsel if you have any doubts.
Do I Need a Lawyer for a Cease and Desist Order?
If you received a cease and desist order you do need an intellectual property lawyer because a cease and desist order is the first step in a lawsuit. Thus, a court of law must grant an order and there is no one better equipped to handle that process than a lawyer.
Why Would I Need to Hire a Lawyer for Cease and Desist Orders?
You will need to hire a lawyer when dealing with cease and desist orders because lawsuits are incredibly complex and you probably don’t know all of the ins and outs that are associated with intellectual property and civil law. This is where an attorney is invaluable because they can pen an effective cease and desist letter as well as advising you about your claim. In short, having a good lawyer on your side greatly increases your odds of succeeding.
How We Can Help
At KAASS LAW, we understand the importance of smart legal advice and action. Often, one can take steps preemptively to ensure their rights are not being infringed or violated. However, in the event that it does happen, we are always there to guide our clients. We know how to write an effective letter that will achieve its purpose, and we also know how to help our clients who have been presented with a cease and desist letter as well. If you need help getting someone to stop using your property, to stop harassing you, or to respond effectively to a letter, we invite you to give us a toll free call at (310) 943-1171 to speak to our experienced civil and intellectual property lawyers today.