Svitlana V. Anderson
Before You Send a Cease and Desist
When to Send a Cease and Desist Letter
Imagine a scenario where you have worked hard to develop a piece of intellectual property, such as an invention that you have patented or a clever brand name for which you have obtained a trademark protection. Later, you discover that a rival company or unsuspecting individual or a business has infringed upon your invention, by creating a similar device, for instance, with a trademark that looks suspiciously like yours.
Understandably, you would want to put an end to this type of infringement. Your first instinct might be to fire off a cease and desist letter or email message warning the infringing party of dire consequences if the infringement does not stop. However, it may be wise to take a step back before drafting and sending that letter or email. While cease and desist letters serve a legitimate function, a poorly crafted demand, or one based on claims that cannot be supported, can do much more legal harm than good.
What is a Cease and Desist Letter?
Typically, cease and desist letters carry no real legal weight. However, such letters allow senders to demonstrate that they have attempted to stop a wrongdoer’s conduct. It may seem obvious, but it is much easier to prove that someone has deliberately engaged in harmful conduct if he or she has been informed that the conduct is wrong.
What to Include in the Letter
Cease and desist letters pertaining to intellectual property infringement should contain the following elements:
your contact information (preferably your attorney’s);
a description and proof of ownership of the valid intellectual property in question;
a statement of the nature of the infringement, including dates and detailed description;
a demand to stop the infringement; and
a warning of legal action after a specified period unless the infringement stops.
Improper Circumstances for Cease and Desist Letters
In many cases, a cease and desist letter is sufficient to stop further infringement, especially if the recipient of such a letter was not aware of the superseding intellectual property rights. However, when the infringement does not stop, having sent a cease and desist letter provides more support for further legal action. Cease and desist must be well-founded and legally sound. If it is not properly crafted or it was not sent for a legitimate purpose, the sender of such letter can land in hot legal waters.
Getting Results from Cease and Desist Letters
In a best-case scenario, when the cease and desist letter is received, the infringement stops. Alternatively, the recipient may either challenge the validity of the letter or simply ignore it. Under either circumstance, the sender should be prepared to take the legal action to defend the claims outlined in the letter.
Can You Write Your Own Cease and Desist Letters?
While a business owner can send this type of demand, generally it is a good idea to ask an attorney representing your business to draft and send this letter.
I Received a Cease and Desist Letter. What Should I Do?
Do not ignore it! Promptly contact the legal experts at Peacock Law.
We can work with you to determine if you or your business need to respond to or send a cease and desist letter. Give us a call to learn more.