Cease and Desist Letter
A cease and desist letter is often the first step in stopping intellectual property infringement such as a trademark infringement‚ copyright infringement‚ or patent infringement. It is essentially a warning letter putting a person or organization on notice to stop using a trademark, copyright or patent without authorization.
If you believe your trademark or other IP rights have been violated‚ or if you have received a cease and desist letter, your should consult with an experienced cease and desist lawyer to determine your best course of action. If an infringement arises, we are aggressive intellectual property litigation attorneys. We will fight hard to protect your IP rights and your best interests in an efficient and cost-effective manner.
Cease and Desist Meaning
The words cease and desist are similar but have slightly different meanings.
- Cease: This legal term refers to a demand that a certain action be stopped.
- Desist: This refers to a demand that the misconduct in question never be restarted. This could be important in situations such as Amazon trademark infringement, where it may be easy for an infringer to just start a new seller’s account and continue the infringing activity.
What is a Cease and Desist Letter?
Cornell Law School defines a cease and desist letter as “… a cautionary letter sent to an alleged wrongdoer describing the alleged misconduct and demanding that the alleged misconduct be stopped. A cease-and-desist letter provides notice that legal action may and will be taken if the conduct in question continues.”
The bold section of this definition essentially serves as the “teeth” of a cease and desist letter. It lets infringers know that their actions haven’t gone unnoticed, and that there will be legal repercussions if the infringing activity is not ended. Since fewer than three percent of legal disputes end up before a judge, it’s obvious that these notices are effective more often than not.
How to Send a Cease and Desist Letter
A cease and desist letter should contain the following:
- A description of your claim to the intellectual property being infringed
- Information regarding the relevant registration information, if applicable
- Links to or examples of the infringement
- A request that the infringer immediately stop their infringing activity
- A specific deadline for compliance
First and foremost‚ a cease and desist letter should give proper notice of the legal rights of the IP owner and clearly describe how the other party is in violation of those rights. The notice letter will then request that the other party stop the illegal or unauthorized actions within a defined period of time. In our cease and desist letters, we demand that the violator stop the infringing behavior immediately upon receipt of the letter, and confirm in writing within 10 days that the activity has ceased. Since it is clear that we are aggressive intellectual property litigators‚ the letter will also inform the violator that failure to obey our cease and desist letter will result in legal action which is usually a trademark lawsuit, copyright lawsuit, or patent lawsuit.
While a cease and desist letter may be used as a warning against any unauthorized or harmful activity‚ it is most often sent in the context of some infringement of an intellectual property right‚ namely‚ a trademark infringement‚ copyright infringement‚ or patent infringement.
When sending a trademark cease and desist letter, it’s important to remember that trademark infringement requires a likelihood of confusion. This makes it important to explain in the letter why consumers may confuse two uses. Additionally, it is important to allege priority of use. If you can show that your use of a trademark predates another entity’s use and that consumers are actually being confused, it’s likely that you’re on strong legal grounding. If your cease and desist issue relates to a trademark matter, you may see our trademark cease and desist page for more information.
A copyright registration is not required, but if the infringed copyright is registered with the U.S. Copyright Office the copyright cease and desist letter should include the registration number. Additionally, the letter should include information regarding the publication date of your content. Providing all this information can make it clear to the recipient that you’re the rights owner. If your cease and desist relates to a copyright issue, you may see our copyright infringement letter page.
In addition to the patent registration number or reference to a pending patent, the letter will include specifics regarding the infringing activities. The product in question must include all elements of at least one claim of a patent. Making a claim of infringement without specific details will likely result in a cease and desist letter being ignored and carrying no weight in court. At times patent infringement matters can lead to licensing opportunities. Please see our patent cease and desist letter page for more information.
How to Respond to a Cease and Desist Letter
You’re under no legal obligation to respond to a cease and desist letter. Failure to do so, however, could hurt you in the long run. If the sender of such a notice doesn’t have a realistic legal claim, for instance, they may see your failure to respond as a weak legal standing. Failing to respond could also motivate them to continue harassing you or even to file a lawsuit against you. Lastly, ignoring such a letter can prove financially disastrous if the courts decide that you are guilty of infringement. Fortunately, a cease and desist letter is your chance to end any further communication or legal action.
Our response to a cease and desist letter typically highlights the best facts and law on why there is no infringement. A response to a cease and desist letter should include:
- Reasons to walk away: If you can showcase a strong case or even just a willingness to hire a cease and desist attorney, you’ll let the sender know that litigation isn’t something you’re afraid of. This is often enough to end further contact.
- Flaws in reasoning: If we notice flaws in a sender’s claim, we will point them out. These could include priority of use or simple non-infringement.
- Justified usage: There are times when you have every right to use intellectual property. This could include instances where you have a licensing agreement or are protected by fair use.
If there is no infringement, to avoid litigation it should be pointed out immediately. If you are infringing upon someone’s intellectual property, it’s best to end your activities immediately and send a response noting as much.
What if the Other Party Ignores the Letter?
If you have already sent your own cease and desist letter and it is ignored by the recipient‚ it is time to hire a cease and desist lawyer. If a letter is ever ignored, we usually suggest filing a lawsuit as a next step. We may be able to file a civil lawsuit in federal court requesting damages and an injunction to stop the infringer from continuing to use your protected intellectual property. Unlike a cease and desist letter‚ failure to comply with an injunction or court order can result in criminal or civil penalties because it is backed by a court of law.
Does a cease and desist letter have to come from an attorney?
These letters – which are sometimes referred to as a “infringement notice” or “cease and desist order” – may be written and sent by anyone and are not backed by a court or government authority. However, violators of intellectual property rights often consider cease and desist letters sent by the intellectual property owner alone to be empty threats. Deciding not to hire an attorney only sends the message that you are not serious about protecting your rights, or that you don’t have the money to enforce your rights. Moreover‚ making inaccurate or false accusations or threatening harm can result in many negative repercussions such as claims of defamation, libel, and interference with business relations which could trump the original infringement.
As such, we strongly suggest that a cease and desist letter, or a response to one, not only come from an attorney, but that the letter come from an intellectual property attorney that litigates. This will show the other side that you are very serious about protecting or defending your rights. Remember‚ cease and desist letters are often the first step in the process of initiating a lawsuit if the infringer does not refrain from violating the IP rights. When drafted and sent by an experienced intellectual property attorney‚ your letter will carry more weight and will possibly bring a quick and favorable resolution to the matter. We believe it is crucial to work with an intellectual property litigation attorney in order to achieve the quickest and best outcome.
What is a Cease and Desist Attorney Cost or Flat Fee?
Our professional flat fee to send a cease and desist letter, or respond to one, is $550. While the letter is customized to your particular situation, the majority of our lawyer time is spent doing our due diligence into researching the best facts and law that apply to your situation. When our research is complete, we then cite the best facts and law in the letter to make your best possible case.
Cease and Desist Lawyer – Mandour & Associates
In the world of intellectual property, the onus of protecting your rights falls upon you. Fortunately, there are legal remedies available and a cease and desist letter is often the best tool in achieving outcome you seek.
We strongly believe in your right to protect your trademark, copyright, or patent that you worked so hard to obtain and we will stand by your side throughout the process of stopping infringers. Through a complimentary consultation‚ we can determine whether sending a cease and desist letter is the best course of action for your circumstance. If you are the alleged infringer, we will try to bring a quick resolution.
If you need to send a cease and desist letter‚ or if you have received a cease and desist letter and need to respond‚ please feel free to contact us.