Cease and desist is a legal term commonly used by authorities, businesses, or individuals when they write a letter or order requiring the recipient of the letter to stop alleged misconduct. The primary purpose of the letter is to bring to the attention of the recipient that they are involved in an action that is damaging to the sender, and if they do not stop, the sender may take legal action against them. This guide covers the nature of a cease and desist letter, how to make one, and what to do when you receive one.
Letters vs. Orders
A cease and desist letter is different from a cease and desist order. The letter can be written by anybody who feels aggrieved by another’s actions. It is also not enforceable. The recipient can choose not to act on it as it is not legally binding. This doesn’t mean that the letter is useless. In most of the cases, the offending party will be persuaded by the letter to stop infringing on your rights.
The letter will also form part of the suit documents which will be filed with the court if you choose to proceed with legal action. It must be emphasized at this point that getting an attorney to write a cease and desist letter on your behalf lends great credence to your claims that the actions of the offending party are beyond the bounds of the law. It is more likely that your letter will be taken seriously in this case.
A cease and desist order originates from a state or federal body against an entity. An order is legally binding and requires the recipient to obey it. A cease and desist order is a form of a temporary injunction against alleged illegal activities until a trial is determined. After the trial, a permanent injunction may be issued.
The difference between a cease and desist letter and order is origin and enforceability. If you feel that you would like information about cease and desist letters, check out this video guide from Aaron Hall.
Why Would You Send a Cease and Desist?
There are various reasons you may need to send a cease and desist letter. These fall in 4 broad areas.
- Intellectual property violations
- Defamation of character/libel/slander
- Contract violations
This is a major reason why people send cease and desist letters. If you suspect someone is using your work that is copyrighted, patented, or trademarked, you can send them a cease and desist letter to warn them of the infringement. On the other hand, if you have used someone else’s intellectual property, you can receive such a letter. In the next chapter, we shall discuss what steps to take in such a case.
This is another common reason. A person who incessantly keeps sending unsolicited messages, emails, calls, or contacts them in whichever way that may be deemed as harassment may receive such a cease and desist letter. Debt collectors are especially notorious for this. Third-party debt collectors are not allowed in law to harass, intimidate, abuse, or disturb anyone in the course of collecting a debt. They are regularly served with cease and desist letters. In the letter, be sure to quote the federal Fair Debt Collection Practices Act, which is the law that governs them. Stalking is another common form of harassment. In serious cases of stalking where your safety is at risk, a restraining order may be more effective. Check out this brief video by Howcast on how you can best secure a restraining order from your local court if your situation is best addressed this way.
The law prohibits defamation of character or libelous actions against a person or a business. As an entrepreneur, you have put in a lot of effort to grow your brand. You would not take any defamation or unfounded rumors about your business kindly. A cease and desist letter would be an excellent place to start in warning the erring party that you take the matter seriously and are ready to follow through with legal action if they continue.
If one party in a contract doesn’t uphold the terms of the agreement, the other party may send a cease and desist letter detailing the alleged noncompliance. This is common in non-compete contracts.
What to do before Writing a Cease and Desist
A cease and desist letter is a formal letter; it is prudent to take time to decide if this is the best course of action. To help you make this decision, I have compiled some steps.
Step 1: Look at the reasons why you need to draft the letter, as we have discussed in the previous chapter. Be sure to look at all the options available to you. Look at the relationship you have, if any, with the recipient and how they may react to your letter. For instance, you may decide to send your neighbor a cease and desist letter for a boundary violation. Even if you are within your legal rights to do so, it may affect your relationship with them going forward. You may try talking to them first.
At this step, decide if you will engage an attorney to write the letter on your behalf, or you will do it yourself. Attorneys don’t come cheap, so if you have to hire one, be sure that the violation is a serious one.
Step 2: Prepare the necessary documents to support your claims. Trademark copyright and patent infringements can be easily supported by showing a copy of the registration certificate.
Step 3: Even if you are not an attorney, research what the law states. You may pay for an attorney consultation just to be precise.
Step 4: Decide on what you want the offending party to do after receiving the letter and how you will evaluate their compliance. Decide what to do in case they resist or make a counterclaim against you. Being prepared for such kinds of eventualities early in advance helps your case.
After these steps, you’ll be prepared to draft your cease and desist letter, which brings us to our next chapter.
Writing an Effective Cease and Desist Letter
A cease and desist letter is a formal letter that can be written by anyone. In some instances, an attorney is better placed to write the letter if the matter at hand is a complex one. In the letter, make sure to include the following essential elements.
- Your name and contact information: This can easily be done by writing the letter on your corporate letterhead
- Important dates: The date of the letter, the dates the violation happened, and any future date that remedial measures must happen.
- The recipient’s name and contact information
- A subject line clearly outlining that the letter is a cease and desist notice.
- The body of the letter detailing the violation and the section of the law it offends. Include evidence such as patent no, copyright registration, etc.
- Outline what the recipients should do and what the actions you intend to follow through with if they don’t.
A cease and desist letter should adopt a professional tone. It should sound serious enough without using threatening language. It is meant to offer the other party a chance to stop their unlawful actions. If you are offering them a timeframe to comply, it should be reasonable.
What Do I Do if I Receive a Cease and Desist?
Usually, a cease and desist letter is sent as a precursor to civil litigation. If the alleged infringement doesn’t stop, the sender will proceed to file a lawsuit. In some instances, the letter will have some form of demands that should be met, such as monetary claims. Cease and desist letters are generally sent on allegations of intellectual property rights infringements such as patents, trademarks copyright.
One point to note is that the letter by itself is not a court order unless it states so. It is not enforceable, though it may be used in subsequent commercial litigation. In some cases, the sender of the letter wants you to negotiate on the alleged infringement and reach a settlement. As we had observed earlier, the cease and desist letter should clearly describe the alleged breach. As a recipient of such a letter, you should not panic but try to understand what the sender claims are.
The first thing you need to do is to establish if it is a cease and desist letter. It must contain the cease and desist words at some point within it. It should clearly describe the infringement and have other supporting facts. These may include the relevant law, relevant patent, trademark, or copyright registration numbers.
The second step is to decide on what action you’ll take. The options available to you are:
- To comply
- To ignore the letter
- To respond to the sender
- To negotiate
- To sue in response
Evaluate the letter and determine if the claims contained in it are valid. Have you infringed on any rights of the sender in a manner likely to cause harm to them? When you have determined the facts of your case, you may proceed to weigh your options.
Complying with the Sender
In the event that the contents of the letter are meritorious, the best option for you may be to comply with the demands of the sender. It is wise to consult with an attorney first on how to communicate your compliance with the sender. In many cases, the party asking you to cease and desist may be relying on a 3rd party law firm to write the cease and desist letter and transmit it to you. Barring any response from you, the law firm may assume that you have chosen to ignore the letter and refuse to comply. Acknowledging receipt of the letter and stating the measures you have taken to comply with the cease and desist letter sent is sufficient here.
Ignoring the Letter
If the claims in the cease and desist letter are unfounded, you may choose to ignore the letter. However, this course of action is not recommended. All too often, the lack of a response from you to a cease and desist letter is regarded as a sign of weakness by the sender. It may encourage the sender to sue if the lack of a reply is interpreted as your lack of preparedness. It may also encourage the sender to sift through details more thoroughly as you exhibit no intent to have all bases covered. It is hardly ever the right decision to ignore a cease and desist letter.
Responding to the Letter
A strong and prompt response to a cease and desist letter sets the tone for any negotiations moving forward. An outright denial of the grounds for a cease and desist letter is weak and insufficient. You must present valid arguments which refute the reasons why you are being made to cease and desist or explain why what you are doing does not amount to an infringement of the rights of the sender. You can also include evidence to support that the claims in the cease and desist letter is vague or unfounded.
Do not be tempted to respond quickly, since any correspondence from you may be used in a lawsuit. Take your time to prepare your response. If you are unsure of anything or if the letter is written in difficult to understand legal jargon, consult an attorney. Lawyers will generally advise you to never admit to any wrongdoing even when it appears apparent. Having a lawyer send a response on your behalf to the sender sends a very strong message that you are not taking the situation lightly and that you are prepared to go into litigation if necessary. Many situations transition into negotiation after you send a response.
One of the most glaring advantages to sending a response to the sender is that this allows a period of time to elapse between the time the cease and desist letter was sent up to the point of suing should the sender decide to take that route. This keeps you from being the recipient of a preliminary injunction which is only issued by the court when the party claiming to be aggrieved by your action will suffer irreparable damage if you do not cease and desist. The courts are less inclined to believe that the damage you are alleged to be causing is irreparable if the party who sent the cease and desist letter took their time before suing you. The inverse applies when you are sending a cease and desist letter. If you do not get a response within the period indicated in your letter, you must take steps to sue otherwise you are not likely to get a preliminary injunction.
Negotiating with the Sender
If the circumstances are you may decide to negotiate with the sender to arrive at a mutually acceptable settlement. It is likely that any litigation results in added costs for both the sender and you. Resolving everything outside of court is ideal. This process is usually initiated with a response from you.
Responding to a cease and desist letter is the right course of action almost all the time. However, there are instances where it is strategically advantageous to sue the other party in response to a cease and desist letter. This is done primarily to seek a declaratory judgment declaring the claims made in the cease and desist letter to be invalid. Some examples of these invalid reasons include but are not limited to the following:
- Claims that have Prescribed
- There are laws for prescriptive easement of use of another’s property in the United States. If you are being made to cease and desist using a property that you openly used for a period of 5 years or more, you may want to look into this.
- Claims that are Unreasonable
- This is common for cases when you agree not to do an action for an unreasonable period of time. For instance, when a company compels an employee to sign a non-compete agreement for a decade after being separated from the company.
If you feel that it would be possible for you to secure a declaratory judgment, consult an attorney as to how it would be best for you to sue in response to a cease and desist letter.
Cease and Desist FAQs
Does the law require I send A Cease and Desist letter before filing for a civil lawsuit?
The cease and desist letter serves as a preliminary step to warn the offending party of an impending lawsuit if they continue with their actions. However, it is not a requirement before filing a lawsuit
Is a cease and desist letter considered a threat?
Depending on the language and tone used, it could be seen as a threat. If written by an attorney, technical terms and legal jargon may sound quite threatening to a layman. If you have received such a letter and are not sure of what it means, consult an attorney for further clarification.
What is the purpose of a cease and desist letter?
The main purpose of a cease and desist letter is to inform a defaulting party that they are infringing on your rights, they should stop their actions and if they don’t, you are prepared to take legal action against them.
I received a cease and desist letter alleging that I was engaged in copyright violations which I believe I haven’t. What should I do?
It is important to note that receiving a cease and desist letter doesn’t mean you are guilty of the alleged offenses. It is upon the sender to prove their allegations. You have every right to defend your actions if you believe you have done nothing wrong. Reply to their letter countering their claims and offering proof to support your case. Check out the section on “What to do when I receive a Cease and Desist Letter” for more a comprehensive guide on what to do.
A cease and desist letter is an important tool available to you if you feel your rights have been infringed upon. It is a chance you offer the offending party a chance to stop their actions and provide remedial opportunities. It is a much cheaper option than instigating a lawsuit in the first instance. Lawsuits are time-consuming and expensive. Even if you eventually win, it may come at a cost to you as well.