A Cease and Desist Letter always sent through an attorney that advises you to hold some activities. The activities may include breaching of contract, infringement of intellectual property or client’s trademark, slander or libel called defamation, some kind of prohibited activities like plagiarism etc.
A Cease and Desist Letter is a message that has two objectives.
- It requires you to suspend or discontinue doing something that the creator claims only he/she/it has the power to do. You may further ask to do reparation.
- It is the initial warning/ signal shot in a possible lawsuit.
The document seems notably threatening with all the legal writing about law and court conclusions that have supposed to confirm the creator’s demand. It has intended to frighten you into acquiescence rather than risk prosecution.
What is the reason to send these letters?
There are so many reasons to send such letters. Following are the few examples:
- Trademark Infringement: In the trademark connection, some jurisdiction punishes a trademark owner for registering to “police” its mark by opposing to infringing uses. In these circumstances, trademark users may seem forced to send a cease and desist letter for no other cause than to have a report of them voicing their complaint to the infringement use. Even if they have no purpose of pursuing the matter further.
- Patent Infringement: Many patents conflicts have settled through a licensing settlement. The patent owner can get paid for an infringer’s use of patented technology. A patent owner may forward a demand letter in purposes of negotiating an agreeable license, even if he has no aim of filing an infringement lawsuit.
- Breach of Contract Cases: Occasionally a violation of contract matter will turn on which party breach its responsibility under the agreement first. In these cases, a vital letter memorializing another party’s previous violation might be used as some proof of that party’s previous breach, supporting the earlier breach contention at a succeeding trial.
Although this list is not exhaustive. It probably explains the circumstance that not every Cease and Desist Letter means that you are going to get prosecuted. That being said, some of them anticipated meaning just that.
What to do, when you receive Cease and Desist Letter?
When you receive Cease and Desist Letter, you immediately contact your attorney. It needs to see whether that letter is about trademark infringement, defamation or harassment. And accordingly, you can select your attorney whether it is criminal attorney, intellectual property attorney or a personal injury attorney.
An attorney shall look after whether the Cease and Desist Letter claim is legitimate or not. And your attorney shall prepare your defence and write a reply on your behalf to the opposite party. Sometimes it happened that opposite party actually file a lawsuit against you. That totally depends on case to case. Hence, do not ignore the risk of commencing opposite party to initiate a lawsuit against you.
Points to consider while responding Cease And Desist Letter
First thing I generally do in analysing a cease and desist letter for a client is looking for hints about those urges. The types of hints vary from letter to letter, but I usually examine things like:
- The tone of the writing: How threatening is it?
- The claim of costs: How exactly are the claimed damages carried? How big is the money amount?
- The warning of further action: Does the letter say that the sender “will register a prosecution”. Or something extra vague like, “will take suitable action”?
Then, it is necessary to do some individualistic research as to the nature of the conflict. Study at the competing trademarks, infringing website or product, and the businesses of both parties. Does the sender seem to have a genuine claim for notable damages? Does the sender seem to have the resources to actually try this matter through prosecution?
Lastly, before settling a formal reply, it is sometimes helpful to pick up the phone and call the other attorney. That maybe to ask for additional time to prepare a formal reply, but also to usually inquire as to whether and on what terms the sender’s client would be ready to settle the matter without prosecution.
There truly is no format reply to a cease and desist letter, but several clients think that their options have restricted to just admitting to the other party’s demands or taking the case to court. Yet, with a thorough analysis of the letter itself and the facts and conditions surrounding the conflict, often a tailored reply can draft that can seek out some middle ground, settling the matter without fully admitting to the sender’s demands but also bypassing lawsuit.