A cease and desist letter is a document sent to an individual or business to stop purportedly illegal activity (“cease”) and not to restart it (“desist”). The letter may warn that if the recipient does not discontinue specified conduct, or take certain actions, by deadlines set in the letter, that party may be sued.[1][2] When issued by a public authority, a cease and desist letter, being “a warning of impending judicial enforcement”,[3] is most appropriately called a “cease and desist order”.
Although cease and desist letters are not exclusively used in the area of intellectual property, such letters “are frequently utilized in disputes concerning intellectual property and represent an important feature of the intellectual property law landscape”.[2] The holder of an intellectual property right such as a copyrighted work, a trademark, or a patent, may send the cease and desist letter to inform a third party “of the right holders’ rights, identity, and intentions to enforce the rights”. The letter may merely contain a licensing offer or may be an explicit threat of a lawsuit. A cease and desist letter often triggers licensing negotiations, and is a frequent first step towards litigation.[2]
Receiving numerous cease and desist letters may be very costly for the recipient. Each claim in the letters must be evaluated, and it should be decided whether to respond to the letters, “whether or not to obtain an attorney’s opinion letter, prepare for a lawsuit, and perhaps initiate [in case of letters regarding a potential patent infringement] a search for alternatives and the development of design-around technologies”.[2]
Cease and desist letters are sometimes used to intimidate recipients and can be “an effective tool used by corporations to chill the critical speech of gripe sites operators”. A company owning a trademark may send such letter to a gripe site operator alleging a trademark infringement, although the actual use of the trademark by the gripe site operator may fall under a fair use exception (in compliance with, in the U.S., the protection of free speech under the First Amendment).[4]
Do You Need a Lawyer to Send a Cease and Desist Letter?
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BY LAHLE WOLFE Updated October 10, 2018
A cease and desist letter is a legal notice sent to someone you believe is infringing on copyrights you own the rights to. The letter is your way of stopping them.
There are three main elements that should be clearly stated in every cease and desist notification:
- Your rights stating that you own the materials
- That the user is violating your rights
- That the user must stop doing something (specific) immediately (e.g., remove an image or photo from a website that you have the rights to
Sometimes cease and desist letters contain additional instructions, or demands, such as a demand for compensation—referred to as a settlement demand letter—or a formal request for proper attribution to correct the violation.
It is important to note that just because you make a demand, your letter does not establish that you have a right to compensation or even that your claim to have exclusive rights to something is valid. Those are legal issues that may need to be settled in court—specifically in a civil lawsuit if you can’t work it out on your own with the business or individual that’s infringing upon your rights.
Do I Have to Send a Letter, or Can I Just Sue Them?
You do not have to send a cease and desist letter prior to filing a civil claim against someone. However, if you are planning to sue someone on your own, doing so without first consulting with an attorney is not a sound option because you lack the legal know-how.
If your claim is small, chances are you can work things out without going to court. That recourse allows both parties to settle a dispute without bearing the expenses of lawyers and court fees.
If you do go straight to court, make sure you are prepared to explain why you didn’t choose to try and work things out with a cease and desist letter. If a defendant can show they were unaware they were violating copyright laws, you may be awarded less in damages. However, if you can show that you notified the defendant with a cease and desist letter and they continued to violate copyrights laws, your damages award could increase if you win the lawsuit.
Can I Write a Cease and Desist Letter, or Must I Hire an Attorney?
The short answer is no, you do not need to hire an attorney. Anyone (whether the complaint is well-founded or not) can send out a cease and desist letter. However, there are reasons why you may want an attorney who specializes in copyright laws at least review your letter before sending it out.
Benefits of Having an Attorney Send a Cease and Desist Letter
Civil claims can be complicated, expensive, and drawn-out (often taking years to be resolved). Even if you get a verdict in your favor, the defendant may file an appeal and further extend the legal process. If you have a good copyright infringement case, an attorney will most likely handle your case free of charge—meaning, they will take it on a contingency fee basis. In that case, you only pay the attorney if she wins a verdict or obtains a settlement for you.
An attorney can also advise you if your rights have, in reality, been violated and if so, if you have enough grounds for legal action.
Also, an attorney can tell you if a cease and desist letter is the appropriate course of action, and can even write the letter for you.
In almost all cases involving consumers, a letter from an attorney will be taken more seriously than a letter from an individual.
How can I get a cease and desist?Use a Cease and Desist Letter if:
- You want to formally tell someone to stop harassing you.
- You’re a victim of copyright or trademark infringement.
- You are a victim of patent infringement.
- A debt collector is harassing you.
- You want to stop a breach of contract.
- Someone is plagiarizing your work.
How much does it cost to send a cease and desist letter?You can write and send a cease and desist letter yourself at no cost. If you hire a lawyer to take care of it for you, expect to pay a legal fee of at least $500. Most lawyers charge an hourly rate for litigation and other legal matters. If you need to litigate, the costs could be very high.
Are cease and desist letters effective?How effective is a cease and desist letter? The answer is, as so many in the law are, that it depends. Specifically, it depends on your goal in sending the letter and in the nature of the person or entity receiving it. But, in at least one sense, it is perfectly effective.
Can you sue without cease and desist?Yes, you can file a civil suit without writing and sending a cease and desist. However, issuing the notice has benefits. First, it can begin negotiations to settle the matter without a court battle. … It’s more difficult to sue someone for doing something wrong, if they didn’t know they were doing anything wrong.