You have spent the last few years building a brand-new venture. Your revenues have started to grow, and you are starting to get recognised in your industry. All is going well until one day you are surfing the internet and stumble upon an advertisement for a similar product to yours with a logo bearing a striking resemblance to your logo. You find out they have ripped off your logo.
One solution would be to file a lawsuit against the other company. It is no secret that legal fees are expensive and that lawsuits are time-consuming. A cheaper, quicker and often more efficient solution would be to use a cease-and-desist letter. Here are the basics that you need to know about cease-and-desist letters.
A cease-and-desist letter is a formal notice used to ask the recipient, which can be an individual or entity, to stop (cease) doing and refrain (desist) from doing in the future, certain specified acts or activities, which violate the sender’s legal rights.
A violation of rights occurs when someone fails to do something they were supposed to do, or when someone does something they are not supposed to do.
An example of the former would be if a manufacturer fails to deliver goods in breach of a contract. Here, the manufacturer would be failing to do something they were supposed to do – the manufacturer, according to the contract was supposed to deliver the goods to the customer yet failed to do so.
Examples of the latter include the making of defamatory comments or infringement of intellectual property rights.
It is supposed to inform the recipient that they are violating the rights of the sender and requests that the recipient stops doing the same. It usually also threatens legal action against the recipient if he/she fails to stop doing the acts as detailed in the letter within the timeframe specified in the letter.
Importantly, an individual does not commence or initiate litigation or any legal action by sending a cease-and-desist letter. Sending a cease-and-desist letter is a stage prior to litigation in resolving a dispute or stopping unwanted behaviour.
People often use cease-and-desist letters to avoid litigation. Litigation is expensive and time-consuming and damaging to both parties. Often, both parties to a dispute prefer to avoid litigation to resolve the dispute. A cease-and-desist letter can resolve any dispute at hand by trying to get the recipient to stop making the specified infringements ever again without any litigation and the costs associated with it.
A cease-and-desist letter can be sent to anyone, whether an individual or entity, who has breached your legal rights.
A cease-and-desist letter can be written by anyone.
Importantly, it does not need to be written by a lawyer or attorney. There is absolutely no requirement, statute or regulation requiring that it be written by an attorney.
A cease-and-desist letter should include the following information:
Name and contact information of the sender
Recipient’s name and information
Reason for the letter (the specific activity which is in breach of the sender’s rights)
The specific rights of the sender that are being infringed by the recipient’s activities
A notice that the recipient should cease such activity immediately otherwise be subject to legal proceedings
A requirement that the recipient respond within a specific timeframe to refute or accept the claim
A cease-and-desist letter should be written in a professional manner. Avoid using slang and foul language in a cease-and-desist letter. Only include facts in your cease-and-desist letter and not opinions or heresy in your letter. Restrict your letter to include only relevant details and leave out any irrelevant information.
No. A cease-and-desist letter is not legally enforceable. A cease-and-desist letter is not a contract agreed to between the parties.
This means non-compliance by the recipient with the demands made by the sender a cease-and-desist letter will not result in any liability for the recipient.
If the recipient does not comply with the demands made in the cease-and-desist letter, the sender may, however, pursue formal legal action in the form of litigation, which will result in legally enforceable orders and judgments.
If a sender of a cease-and-desist letter successfully sues the recipient, the court may issue an injunction. An injunction is an order which requires a party to refrain from doing something. In this case, the injunction would require the recipient from violating the rights of the sender.
This injunction is legally enforceable. Non-compliance with an injunction by the recipient will leave the recipient subject to paying damages and criminal charges for contempt of court.
Cease and desist letters can be issued to deal with a multitude of issues and situations. The following are some of the most common instances in which cease-and-desist letters are used:
You likely have valuable intellectual property– whether that be copyright, trademarks or patents – which help you stand out in your market.
Your ownership of this intellectual property gives you the right to use it to the exclusion of anyone else. So, when someone uses your intellectual property without your consent or permission, they breach your Intellectual Property rights.
Cease-and-desist letters can be useful to protect such IP rights. Any cease-and-desist letter to this effect should clearly state what the recipient is doing to infringe your IP, what specific IP they are infringing and state what action (normally litigation) you will pursue if the recipient does not stop such infringement.
DocPro has comprehensive cease-and-desist letter templates to handle disputes relating to the breach of rights associated with different types of intellectual property different types including trademarks, copyrights and patents. You can find cease and desist letter templates which vary depending on which type of intellectual property they are suitable for below:
You can find it at the following web address: https://docpro.com/doc1195/cease-and-desist-letter-trademark-infringement
You can find it at the following web address: https://docpro.com/doc1546/cease-and-desist-letter-copyright-infringement
You can find it at the following web address: https://docpro.com/doc1550/cease-and-desist-letter-patent-infringement
If you’re being bombarded with calls and emails from debt collection agencies, a cease-and-desist letter can be helpful to get them to stop harassing you.
Many jurisdictions have legislation which governs how debt collection agencies must act. For example, in the USA, the Federal Fair Debt Collection Practices Act has been passed.
Using a cease-and-desist letter you could urge them to stop contacting you or be reported to the authorities for breaking the law.
DocPro has comprehensive cease-and-desist letter templates to handle disputes relating to harassment from debt-collection agencies.
You can find this template at the following web address: https://docpro.com/doc1552/cease-and-desist-letter-debt-collection-agency
A cease-and-desist letter can be used to deal with harassment and demand the end of such inappropriate behaviour.
Determining how to put an end to sexual harassment, workplace harassment, stalking or cyberbullying, can be difficult. A cease-and-desist letter is often the first step people take to putting an end to the harassment.
To decide whether a cease-and-desist letter is the best first step to take in confronting your harasser, you should use your best judgment.
If sending such a letter is likely to fuel the harasser and lead to further, more frequent harassment, then you might not want to send it and might determine that pursuing litigation directly may be the best way to proceed.
DocPro has comprehensive cease-and-desist letter templates to handle disputes relating to different forms of harassment. You can find them here:
You can find it at the following web address: https://docpro.com/doc1543/cease-and-desist-letter-sexual-harassment
You can find it at the following web address: https://docpro.com/doc1544/cease-and-desist-letter-workplace-harassment-discrimination
You can find it at the following web address: https://docpro.com/doc1545/cease-and-desist-letter-bullying-stalking-cyber-bullying-cyber-stalking
Defamation is the act of making false communications about a person that degrades their reputation or otherwise harms their reputation. Defamation usually constitutes a tort or criminal offence in particular jurisdictions.
There are two forms of defamation that one can be sued for: libel and slander.
Libel refers to defamation of a person found in print. Libel refers to defamation through written statements that have been published.
Slander refers to defamation of a person through speech.
A cease-and-desist letter can be useful to make a recipient retract a defamatory statement, whether slanderous or libellous. The letter should clearly state the specific defamatory statement at issue, the reasons why it is false, and the damage your business has suffered as a result. A deadline should be included by which time it should be retracting after which you will commence legal action against the recipient.
DocPro has comprehensive cease-and-desist letter templates to handle disputes relating to slander and libel. You can find templates varying depending on the type of defamation at issue below:
Defamation of character/slander/libel
You can find it at the following web address: https://docpro.com/doc1547/cease-and-desist-letter-defamation-of-character-slander-libel
Defamation of company
You can find it at the following web address: https://docpro.com/doc1548/cease-and-desist-letter-defamation-of-company
A cease-and-desist letter can be sent in all the ordinary ways including:
In-person delivery accompanied by the signature of the recipient affirming receipt
Use a legal process server to deliver the letter for you
It is best to choose a method through which you can prove the recipient actually received the letter. This is to ensure that should the recipient contest that the cease-and-desist was not delivered to them properly, you can prove that it was properly delivered to them.
As such, it is common to find cease-and-desist letters being sent using certified post. Through certified post, the sender receives a certificate of posting, which can be used to prove it was sent to the recipient.
If the recipient has ignored the cease-and-desist letter, you may consider pursuing further legal action.
Make sure that a reasonable period of time has passed to allow the recipient to respond and comply with your request, before deciding whether to pursue legal action.
In considering what a reasonable timeframe is, consider factors such as:
Certain methods will deliver the letter to the recipient faster than others. For example, an email will take a few seconds for delivery to the recipient whereas postal services will take a few days for delivery.
Certain infringements may be more difficult to rectify than others. For example, if a person has designed a product in breach of your intellectual property rights and has already started selling it in stores across the country, it will take them lots of time to organise for all shops in the country to stop selling the products.
Make sure you give the recipient adequate time to respond to your letter. In determining how much time is adequate, consider the method that the receiver is likely to use to send their acknowledgement or reply.
A recipient may use this tactic to try to gauge how strong the evidence and case of the sender is against the recipient. Following receipt of such information, the recipients will determine how to proceed: whether to cease and desist or continue business as normal.
Denying that any acts have been performed which infringe the rights of the sender but is willing to have discussions pertaining to the concerns of the sender
Recipients who respond in this way are usually sensitive to the allegations and well aware of the risks associated with potential infringement.
This is the best-case scenario. The recipient will stop violating your rights and you do not have to begin any litigation. Both parties save considerable time and money.
This response is usually made by persons who are unknowingly infringing the rights of the sender. They generally take swift action to stop the acts/actions causing the infringement in the hope that they will be exempt from much liability for the infringement.
Please note that this is a general summary of the position under common law and does not constitute legal advice. As the laws of each jurisdiction may be different, you may wish to consult your lawyer.
DocPro Legal is a team of legal professionals with a passion for making quality documents and legal contract templates widely available to the public through cutting edge technology. Our lawyers are qualified in numerous common law jurisdictions including the United Kingdom, Australia, New Zealand, India, Singapore and Hong Kong. We have experience in major law firms and international banks with expertise in business, commercial, finance, banking, litigation, family, succession and company laws.
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