A cease and desist letter is a warning message to the recipient that they should stop taking certain actions or behaviors. Legal consequences may arise if they do not cease. It is not a lawsuit in itself, but a notice that a lawsuit may be filed if the recipient does not comply with its demands.
How does a cease and desist letter work?
A cease and desist letter involves alleged claims. The term “alleged” means they have not yet been proven, but the sender of the letter has good reason to believe that the recipient is taking actions that violate the sender’s rights. The letter informs the recipient that they must immediately stop such actions or they may face a lawsuit against them.
A successful legal action may require the defendant to legally stop their actions and pay potential damages. However, the letter does not necessarily guarantee that a lawsuit can be filed against the recipient. It is a prior warning that such an event may occur.
This type of letter is often associated with copyright violations. An artist may have rights to a particular song they created, preventing anyone else from recording it without compensating the original artist/creator of the work. However, a cease and desist letter can play a role in many other types of actions as well.
Examples of cease and desist letters
Cease and desist letters typically protect trademarks, copyrights, and patents, but they can also issue warnings against defamation and other types of actions.
Here is an example. Let’s say you just rented the upper apartment of your dreams. You’re a night owl and love your music. You might receive a cease and desist letter from the landlord if they receive complaints about your loud behavior in the early morning hours. Stop playing music outside of reasonable hours, or the landlord will file an eviction lawsuit against you in court.
Most trademarks—such as the McDonald’s arches—are registered with the U.S. Patent and Trademark Office (USPTO). This creates a clear legal right of ownership. You might receive a cease and desist letter from McDonald’s if you put up a matching version of those arches above your corner hamburger restaurant.
Note: There is no legal requirement to register with the USPTO or copyright legal protections to legally safeguard a trademark or other work.
The Federal Trade Commission issued cease and desist requests to 21 advertisers in late 2021, warning them to stop claiming that their products could prevent or treat COVID-19 when there was no evidence or research to support those claims.
Cease and desist letter vs. restraining order
A cease and desist letter may lead to a restraining order or it may not.
Cease and desist letter Restraining order
Issued by the wronged person or their attorney Issued by the court after a hearing or successful trial Acts as a warning to stop some actions Orders the recipient to cease the stated conduct
Requirements of a cease and desist letter
The likelihood that a cease and desist letter will achieve the desired outcome and/or substantiate the case in court may depend on its proper drafting. There is no specific legal format that you must follow, but a lot of information should be included.
Information related to the trademark or copyright or other legal protections in place: This may include contracts prohibiting loud noise, such as the example concerning music at late hours. It will include the copyright or trademark number in other cases, along with identifying information about the owner and what the recipient did to infringe upon that protection.
Evidence
On the infringement: This may include drawings, charts, or any other evidence of similarity between the protected material and the infringer’s product or actions.
The request: The letter must include a clear request for the behavior or action to cease and specify a certain deadline. It must request a written response to the claims indicating that the behavior has been stopped or will be stopped.
Warning: The letter must clearly state that the sender may and will take legal action if the behavior or infringement does not stop. It may also include any financial penalties or sanctions that may result from a lawsuit.
Associated parties: Send copies to any individuals or companies that may be involved in a subsequent lawsuit, such as a newspaper that published an advertisement featuring a picture of your hamburger restaurant.
There is usually no deadline for the offending party to send a cease and desist letter, but excessive delay may weaken your case.
Note: There is no rule stating that the offending party must first send a cease and desist letter before filing a lawsuit in court. They can proceed directly to filing a complaint against the violator to initiate court proceedings to obtain a cease and desist order.
Frequently Asked Questions (FAQs)
Can anyone write a cease and desist letter?
Cease and desist letters are typically written by attorneys who have a strong understanding of the laws related to the specific case. It is not necessary to hire a lawyer, but you may want to exercise caution and seek legal advice if it seems likely that the matter will end up in court and your letter will be presented as evidence.
How much does it cost to send a cease and desist letter?
The cost of a cease and desist letter depends on whether you want to try writing the letter yourself or if you would like assistance from a legal professional. Attorney fees may vary based on typical rates in your location, as well as the attorney’s specialty and years of experience. Costs are likely to increase significantly if the matter escalates after just a cease and desist letter and the attorney needs to file and manage a lawsuit and appear on your behalf in court.
What happens when you receive a cease and desist letter?
A cease and desist letter is not a legally filed lawsuit unless you also receive a subpoena and complaint. You can respond in writing stating that you will not cease the alleged actions and explaining your reasons, but this will certainly lead to a lawsuit and a ruling against you if you do not defend yourself. You may also file a lawsuit yourself seeking a declaratory judgment, asking the court to declare on record that you have not violated anyone’s rights.
Source: https://www.thebalancemoney.com/faqs-about-cease-and-desist-letters-3514943
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