The First Line of (Legal) Defense: Cease & Desist Letters

A cease and desist letter is a method to assert your rights when you have reasonable belief that someone has infringed upon your IP or breached an agreement. In addition to demanding the wrongdoer “cease and desist” the behavior at issue, the letter is designed to put the alleged infringer on notice that you intend to take action if they continue infringing.  It might also set forth terms for curing the wrong or opening negotiations.  So while the primary reason is typically to have the recipient cease infringing, it may be just one of several objectives of your letter.

Businesses, particularly those that maintain multiple contracts or licenses, are more likely to use cease and desist letters.  Therefore, having some understanding of their role and function is helpful.  The letters are used throughout a number of business and intellectual property contexts.  They’re used for policing infringement and non-compliance across all IP – copyrights, trademarks, patents, and trade secrets – as well as business contract breach situations. If someone is engaging in a behavior which affects your financial interests or is doing something without your permission. cease and desist letter is a good place to start.  It asserts your ownership and financial rights, puts them on notice of legal action, and is a common way to move issues towards resolution.

Cease and desist letters (also known as C & D letters) are a first line of defense (or sometimes offense) and eliminate ignorance as an infringer defense.  If the recipient(s) continues infringing, you’ll determine the next steps you’ll take depending on your situation.  It’s ideal to be sincere in your C & D letters.  Your action plan will likely already be articulated in your letter and ready to be executed.  Nothing reminds an opposing party that you’re serious like sticking to what you warned would happen and doing so within the timeframe you describe in your letter.

All cease and desist letters will typically cover the same core topics:

Asserting Your Rights

The first thing the letter usually does is describe your lawful claim to your ownership or contract rights. In clear language you want to explain why you as the sender are the lawful owner of the intellectual property in question. It helps to provide corroborating evidence of your ownership like copyright information, date of creation, or other proof of ownership as well.

“Ceasing” the Behavior

It should also include language describing the scope of the wrongful behavior and exactly which infringing actions should be stopped. Just like asserting your rights, it helps to includes evidence or addendums that show the infringing use or behavior. The clearer, the better.

Explaining the Legal Consequences

Of course it’s not enough to simply state the infringing behavior, almost all cease and desist letters inform the recipient exactly what consequences there may be and what, if any, curative action can be taken. You want to draft your letter in a way that the recipient feels compelled to comply with your behavior. Importantly, cease and desists letters don’t carry legal weight themselves, but rather the prospect of future legal action.  Depending on context, that can be enough to compel the recipient to open a dialogue.

Tone

Choosing the right tone is an important part of your letter. Sometimes the aim is to be non-threatening in hopes that the recipient might agree to your demands or agree to a license fee.  If it’s a person or business you have a good relationship with, you may choose to be overtly civil and understanding in your letter. If the opposite is true, you or your attorney would draft accordingly.  A good attorney can help you home in on the tone and approach for your situation.

What If It Doesn’t Work

What if the recipient of your work fails to comply with your letter?  If your letter was written well, the recipient will have a clear action step as to what’s expected of them. It’s always a good idea to really think through your plan for this step beforehand so that when the time comes, you don’t need to deliberate about your next steps.  You can just execute them.

Remember a C & D letter is a pre-lawsuit letter, not a court order, so it’s not legally enforceable in and of itself.  You really only want to be using them if you have a legitimate grievance and feel like the letter would either move the opposing party to action or that you could win the issue in court.  The best C & D letters are convincing enough that the recipient is moved to respond rather than recoil.

How to Obtain a Cease and Desist Letter

The easiest way to obtain a cease and desist letter is to reach out to a licensed attorney in your state with a focus in contract, business, or intellectual property law.  It’s a straightforward document so the attorney doesn’t need to be specialized necessarily, but it will help to have someone familiar with filing complaints under local or state law.

I’ve seen people write their own cease and desist letters (especially if they expect the discussion to be civil), but if your letter carries the threat of legal action, it’s probably wiser for it to be sent from an attorney’s office. People tend to take letters from attorneys more seriously because it conveys implicitly that the issue is serious enough that you reached out to a professional. The intangible elements like tone and gravitas can be dramatically improved through proper attorney drafting as well.  On the flip side, if you ever receive a cease and desist letter, you can also consider forwarding the letter to an attorney to help draft a response.

Conclusion

If your issue is serious or expensive enough, you should consider a cease and desist as an effective tool for enforcing your rights.  If you wield cease and desist letters well, it can help move an issue towards a resolution.