A cease-and-desist letter has no actual legal standing but is a cautionary document outlining alleged wrongful behavior and demanding that it stop. Cease-and-desist letters are not always precursors to filing lawsuits but are typically attempts to avoid costly litigation.
They should not be confused with cease-and-desist orders, which are legally-binding documents issued by courts or governments, also known as injunctions or restraining orders. A cease-and-desist order requires the receiving party to stop alleged misconduct until the matter can be settled or litigated.
Uses in intellectual property cases
Many situations warrant issuance of cease-and-desist letters in intellectual property (IP) matters, including:
- Patent infringement
- Trademark infringement
- Violations of noncompetition agreements
For other business matters, cease-and-desist – or demand letters – can address contract breaches, libel, slander and defamation. They are also sent to debt collectors in an attempt to stop harassment.
Filing paperwork for IP protections
Filing official paperwork provides companies with the best level of protection over their intellectual property. Patents are more complicated and must be registered to protect unique processes and inventions.
Filing paperwork is optional for trademarks as protections apply after you create original content for yourself or your company. However, officially documenting those protections is typically the best course of action.
What does a cease-and-desist letter contain?
While these documents differ from case to case, they typically should include the following for IP matters:
- Name and contact information for both parties
- A description of the IP issue
- Dates and times of violations
- Proof of ownership
- Potential consequences, which may include legal action
- A time limit to respond
It is crucial to be as specific as possible, especially when detailing violations. Letters should be sent with delivery confirmation and require a signature upon receipt.
Should I have a lawyer write the letter?
Cease-and-desist letters are not legal orders, so they do not need to be sent by an attorney. However, since these matters are usually complex and “demand letters” are typically the first or second step in filing a lawsuit, it is advisable to consult with a knowledgeable attorney.
Your lawyer should not only understand the intricacies of IP protections but know how to word the letter without making threats that can be construed as extortion, blackmail or other crimes. You can file a lawsuit without sending a cease-and-desist letter, but many individuals and entities try this approach first to avoid what can become lengthy and costly legal battles.