A Cease and Desist letter is a letter advising a person or organization to stop performing acts which are illegal in nature. The letter informs the person that they are engaged in illegal or harmful activity, and requests the person to refrain from continuing the actions.
A cease and desist letter is different from a cease and desist order, or “C&D.” A cease and desist order is typically issued by a judge or a government agency as the final result of a court ruling. A cease and desist order is much more final and binding, as it is backed by court authority.
In contrast, a cease and desist letter can be sent outside of the court process. They can be sent by anyone, although they are usually drafted by a lawyer. The letter can be used as part of the process of initiating a lawsuit.
Cease and desist letters are sometimes called “demand letters”. Although they are similar in form, technically this is not completely accurate. A demand letter serves the purpose of alerting the recipient that a claim is pending for money damages as a result of a tort or contract violation. In contrast, cease and desist has to do with the stopping the party from performing an action, and is therefore more similar to an injunction.
When can Cease and Desist Letters be Used?
Cease and desist letters are usually sent in the context of infringement. In these cases the sender of the letter is claiming that the recipient is using their copyright, trademark, or patent in an unauthorized manner.
The letter should state the rights that are owned, and what types of materials are involved in the infringement. The unauthorized user is typically told to stop using the material, or to obtain proper authorization to do so (such as paying royalties or other fees).
Other situations where cease and desist letters are commonly used include:
- Harassment in relation to debt collection agencies or solicitors
- Stalking and other types of invasions of privacy
- Libel, slander, defamation, or other damage to one’s reputation or likeness
- Property or boundary disputes- to have a neighbor or other nearby property stop encroaching on boundaries or intruding onto property
What Should a Cease and Desist Letter Contain?
The most important part of any cease and desist letter is to state the legal rights that you own and that the other party is currently violating. For example, if a copyright is being infringed upon, you should inform the other person that you own the copyright and that their present use of the material is in violation of the law.
You should also present the other party with a request to stop using the copyrighted material. You should set a solid deadline for when the use should stop, which is usually immediately upon receipt of the letter. Finally, you should inform them of what legal consequences they should expect if they fail to obey the cease and desist letter, such as a legal damages, fines, or jail time.
You should include a copy of any relevant statutes that discuss the violations and the legal penalties. This is why a lawyer can be helpful in drafting such a letter.
On the other hand, you should also be careful with what information that you provide the other party with. You should provide enough information to alert them that they are in violation. However, you do not have to provide every detail regarding your copyrighted material. For example, you definitely do not want to provide information that would allow the other party to modify their material so as to avoid liability.
What if the Other Party Disobeys the Cease and Desist Letter?
If it is clear that the other party has received your letter but they have not responded to it, you may have several options available to you. You can file a lawsuit in civil court and attempt to obtain an injunction to have the party stop using your copyrighted materials. If you have suffered damages from the violations, such as loss of profits, you might be able to recover legal damages as well.
It is very important that you make copies of the dates that you sent the letter, and if possible, dates when the opposite party received the letter. That way, you will have evidence that the other party failed to respond to your requests.
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 if you contact an intellectual property lawyer before you draft the letter. An attorney can help you draft a letter that is compelling and forces the other party to consider the consequences of their actions. Alternatively, if you need to obtain a cease and desist order from a judge, a lawyer can help you prepare your claim before you go to court.