A cease and desist letter is a letter sent to a party putting them on notice of some infringing conduct and demanding that they stop or face legal action.
There are multiple reasons why it is effective to send a cease and desist letter. Firstly, the other party may not even have been aware they were in breach or infringing something. Secondly, it starts an official line of communication between you and the recipient, which can be produced in court if legal action is taken in the future. Finally, the letter warns the recipient that they may face legal proceedings if they do not stop the behaviour listed in the letter. If the demands are complied with both parties can avoid lengthy and expensive court processes.
Typical circumstances of when to send a Cease and Desist letter
Trademark or Copyright Infringement
It is common to send a cease and desist letter if you become aware of someone using a logo or phrase or symbol similar to yours, or if they have replicated a substantial part of your original work. It is helpful to include formal evidence of your rights to the trademark/copyright.
Defamation
A cease and desist letter can be sent to an individual or business that is making false statements which are damaging you. The letter should be detailed and refer to specific details of what was said and the negative impact this has had on you, whether it be financially or personally. To comply with your letter the recipient will have to stop making false statements and also remove any written statements posted online.
Harassment
A cease and desist letter can be sent to someone harassing you. This is important to do even if you have already told the offender orally, as a formal written letter is strong proof of their actions and can be used as evidence in potential legal proceedings. Again, a detailed letter is best, and you should include specific details of what the harasser did, when they did it, and how it was threatening or annoying.
How to send a Cease and Desist Letter
It is recommended that you hire a lawyer to write your cease and desist letter for you. Relying on online templates is risky as they may not cover everything that you need, which can significantly disadvantage you if you later have to go to court.
There are also often specific requirements in legislation for court related documents, and it can be easy to miss if you do not have the requisite knowledge. In the worst case scenario, your cease and desist letter will not be recognised as effective.
How to respond to a Cease and Desist Letter
Firstly, it is important to note that just because you have received this letter, it doesn’t mean you have actually breached or infringed anything. Nevertheless, you must take any such letters seriously and act quickly, as you risk facing legal proceedings which are very lengthy and expensive.
We strongly recommend obtaining legal advice as soon as possible if you have received a cease and desist letter. Our team at OpenLegal is highly experienced and can help resolve these issues for you.
Phil is a director at OpenLegal. He has over 16 years experience working in private practice and in-house counsel in Sydney and London, giving him expertise in employment law, IP, finance, leases, dispute resolution, insurance and contracts.
