A copyright cease and desist letter is a letter that advises a person or organization to cease performing illegal acts. The letter informs the person that they are engaging in illegal or harmful activity and requests that they cease their actions.
A cease and desist letter differs from a cease and desist order, abbreviated as “C&D.” A cease and desist order is typically issued as the final result of a court ruling by a judge or a government agency. Because it is backed by court authority, a cease and desist order is far more final and binding.
On the other hand, a cease and desist letter can be sent outside the court process. They can be sent by anyone but are typically drafted by a lawyer. The letter can be used as part of the lawsuit-initiation process.
Cease and desist letters are also known as “demand letters.” Although they have a similar shape, this is not entirely correct. A demand letter informs the recipient that a claim for monetary damages as a result of a tort or contract violation is pending. In contrast, cease and desist is more akin to an injunction because it prevents the party from performing an action.
When Can Cease and Desist Letters Be Used?
Cease and desist letters are typically issued in the event of an infringement. In some circumstances, the sender of the letter claims that the receiver is violating their copyright, trademark, or patent.
The letter should specify who owns the rights and what materials are involved in the infringement. The illegal user is typically urged to quit utilizing the item or gain proper authorization to do so (such as paying royalties or other fees).
Other common uses for cease and desist letters are as follows:
- Harassment of debt collection agencies or solicitors
- Stalking and other sorts of privacy invasion
- Libel, slander, defamation, or other harm to a person’s reputation or likeness
- Disputes over property or boundaries- to have a neighbor or other neighboring property stop infringing on boundaries or intruding upon property
What Should a Cease and Desist Letter Contain?
The most crucial aspect of any cease and desist letter is to establish your legal rights that the other party is now infringing on. For example, if a copyright is being violated, you should notify the other party that you hold the copyright and that their current use of the item is illegal.
You should also request that the other party stop using the copyrighted material. Set a firm timeframe for when the use should cease, which is normally immediately upon receipt of the letter.
Finally, notify them of the legal ramifications of failing to comply with the cease and desist letters, such as legal damages, penalties, or jail time.
Include a copy of relevant statutes addressing the infractions and legal penalties. This is why hiring a lawyer to create such a letter can be beneficial.
On the other hand, you should be cautious about what information you disclose to the other party. You should give them enough information to make them aware that they are in breach.
However, you are not required to submit every detail about your copyrighted property. You do not, for example, want to offer information that might allow the other party to edit their work to escape liability.
What If the Other Party Disobeys the Cease and Desist Letter?
If it is obvious that the other person has received your letter but has not responded, you may have numerous options. You can launch a legal case and seek an injunction to stop the party from exploiting your copyrighted content. If you have experienced financial losses due to the infractions, you may also be eligible to collect legal fees.
It is critical that you save copies of the dates you sent the letter and the dates the opposite party received the letter. That way, you’ll have proof that the other party didn’t react to your inquiries.
If I Receive a Cease and Desist Letter, How Should I Respond?
There are numerous methods for responding to cease and desist letters. Instead of worrying or ignoring it, discover what to do if you receive a cease and desist letter, including how to determine whether the claim is legitimate.
Your initial reaction is usually one of concern or fear, but nothing in the letter from a court or a judge orders you to do anything. While you should not ignore a cease and desist letter, it can occasionally initiate a conversation with the opposing party. It may eventually make the other party regret sending it.
When you receive a cease and desist letter, you should first present it to an attorney. You’ll need an intellectual property attorney, a criminal attorney, or a personal injury attorney, depending on whether the letter is about trademark infringement, harassment, or defamation.
The attorney must first establish if the cease and desist claim is legitimate. If the other party claims you’re infringing on their tulip logo, but your brand utilizes a different flower in a different color with a different message, chances are you’re not. However, if the logos and slogans are very similar, you may be committing trademark infringement.
A cease and desist letter is nothing more than an attorney’s judgment that you must immediately change your behavior, but no court order orders you to do so.
A cease and desist letter can’t accomplish much on its own, but it can warn you that if you don’t comply, the other party will sue you. In some circumstances, the party will sue you, while in others, they will not. However, do not ignore the letter, or you risk having the opposing party file a lawsuit against you.
After receiving the letter, you may discover that the other party is truly infringing on your trademark. If you filed your trademark first, or if the other party has permitted you to continue using your logo and mark without complaint for an extended time, you can determine this with your attorney. An intellectual property attorney can advise you on whether you must comply or whether you can refute the similarity between the two marks. There are numerous different defenses to trademark infringement that the attorney will investigate.
While there is no time limit for responding to the letter, it is best if you respond as soon as possible. A cease and desist letter may include an artificial deadline for you to respond, such as seven days. While most letters instruct you to cease and desist immediately, you can respond to the cease and desist letter in one of several ways.
If your domain name or brand is similar to the trademark of another company, you can react to the cease and desist letter by:
- Having your attorney draft a response letter in order to negotiate the continued use of the name with the other trademark owner.
- Requesting additional information from the other party, including viewing their trademark to determine whether they have a legitimate claim
- After talking with your attorney and determining that the other party is infringing on your rights, write to the other party and request that they stop using their name because it violates your mark.
- Giving up your existing name and shifting to a new one without giving up everything
- Denying any similarity between the markings in writing and asserting that your mark is not causing misunderstanding
- Accepting the opposing side’s position and having your attorney send a letter declaring that you would comply with their request
- Filing a declaratory judgment case before the other domain owner does, requesting that the court determine if you are infringing on the trademark.
While it may be tempting to use social media to publicize what the other person or corporation has done to you, do not use social media, text, email, make phone calls, or publish anything about the other party. All of these will be admissible in court against you, and they will be discovered. Allow the lawyers to handle things for you.
Discuss with your attorney how to save evidence such as messages, emails, and website copies. Don’t throw away evidence because you could need it later. A skilled attorney will assist you in responding appropriately.
Because how you respond to a cease and desist letter can take so many different forms—and has major potential ramifications for your business—it’s critical to understand how to research the circumstances stated by the letter’s sender before responding to the letter.
Do I Need a Lawyer for Cease and Desist Letters or Orders?
If you need to send a cease and desist letter, it is best to consult with an intellectual property lawyer first.
An attorney can assist you in writing a compelling letter that forces the other party to consider the consequences of their actions. Alternatively, if you need a judge to issue a cease and desist order, a lawyer can assist you in preparing your claim before going to court.