STOP! Cease and Desist Letters: What You Need to Know

A cease and desist letter is a method to assert your rights when they are being violated. It’s a letter, typically sent by an attorney, that alleges wrongful conduct and puts the wrongdoer on notice that, save some compliant action, they are on notice that a legal action may be taken against them if conduct persists.

They are used in a number of applications including intellectual property infringement, defamation, and litigation. More specifically, they might be used to stop use of a copyrighted work, put a film production on notice of legal or permit non-compliance, or used to stop someone from continuing slanderous or libelous behavior.

A cease-and-desist letter is a non-binding letter, but it does have some legal significance. It provides constructive notice to the wrongdoer which can be critically important in a later mediation or litigation. When a court looks at the chronology of events, this letter can show that the infringer or violator had knowledge that his or her actions could be unlawful, which is especially important for any conduct after being put on notice. This is no small thing in a dispute.

In this post, I’ll explore how to approach cease and desist letters and provide insight into how to obtain and use them effectively. In the IP world, cease and desist letters can be common and so having some understanding of their role and function in protecting your rights is helpful.

What It Includes

All cease and desist letters will typically cover the same core topics:

Asserting the Legal Standing of the Sender

The first thing the letter will do will be to make a lawful claim of ownership or an entitlement of rights on behalf of the sender. Essentially, it’s establishing the sender’s lawful right to claim that the recipient cease the conduct in question. “Hey, I’m the rightful owner and here’s why…”

Demanding a Stop to Infringing Activities

It will also include language describing the wrongful conduct and should be explicit in explaining the scope of the infringing behavior and exactly which infringing actions should be stopped. The clearer, the better.

Requesting Remedial Actions

Of course, it’s not enough to state the infringing behavior, almost all cease and desist letters inform the recipient exactly what consequences there will be and what, if any, curative action can be taken to resolve the dispute. This really depends on the situation but often involves requests to take down infringing content, pay for damages, or cease the posting or harassing behavior. Whatever action the recipient can take to avoid an ensuing legal action should be clear and explicit, even if that’s an offer to sit down at a negotiating table

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Keeping Your Legal Options Open

By this point, the rights holder had demonstrated his or her willingness to take legal action if the infringement persists - this might be litigation, notifying the right regulatory body, filing a complaint, or some other legal action. Usually, this is done by specifying a reasonable amount of time for the recipient to respond or to rectify the situation after which the sender threatens to initiate the legal action.

What to Consider

You’ll want to consider at least a few of the following when drafting your letter.

Context

Typically, by the point someone decides to use a cease and desist letter, there is some actual or metastasizing legal problem at play. Your job is to couch your cease and desist letter in the scope of your legal problem. This means articulating any critical information and/or any legitimate future consequences. You want to persuade the reader that it’s more than likely that if you bring legal action, you will succeed.

This is where having an attorney often helps because of their understanding of how to be effective and to the point. Avoid fully litigating your issue, being petty, or airing unnecessary grievances in your letter. Remember, the point of the letter is to compel or persuade the recipient into a desired action and to put them on notice of a forthcoming legal action notwithstanding. You want to draft your letter within the scope of the overall legal issue and with future action in mind.

Length

If it’s something straightforward, a cease and desist letter might only be one or two pages. However long the letter, you want to show that your legal threat should be taken seriously because it is supported by convincing facts, evidence, or legal theory. Often, the letter may be accompanied by an additional copy of an agreement or graphic or photographic evidence which, if it clarifies your argument or offers proof of the infringing behavior, might need to be included. One classic example where a cease and desist letter might be lengthy is between attorneys representing different companies. Drafting attorneys may include excerpts from several legal cases to buttress their legal claims and set the framework for an expected legal battle. The takeaway is that these letters are almost always drafted with some perspective for how likely or aggressively the recipient might choose to defend against the asserted claim.

Tone & Language

A cease and desist letter should generally be treated as a formal communication in the event that it becomes evidence of notice in a subsequent lawsuit. But that doesn’t mean that your tone needs to be cold or hostile. Some people may decide their situation warrants a softer or friendlier approach. You’ll see this in the arts community, particularly if there’s a sense that the infringer might be innocent or unknowing in their infringement of a work. This allows an IP owner to initiate contact without appearing overly hostile. This might be a smart approach if your goal is to start a negotiation to secure a fee from the opposing party.

How to Obtain a Cease and Desist Letter

Here are a few points to consider before or during the drafting of your cease and desist letter:

Gather Supporting Evidence

I mentioned earlier how important supporting your claim is to the legitimacy of your cease and desist letter. This means, prior to considering drafting one, you consider the available evidence or your access to available evidence. At this point, as you get closer to legal action, you should notating each case of infringement, communication, or any other relevant data that might support the demands in your letter. All this evidence may not make it into your cease and desist letter, but as you seek out a professional, this evidence will have tremendous relevance into the success of your outcome and how confidently you can pursue certain tactics.

You can send a meritless or toothless cease and desist letter, but in general, I would discourage such frivolous behavior. It may have its place as a psychological tool, but eventually a good lawyer will sniff that out and counsel his client accordingly.

Timeliness & Follow-Up

Timeliness might refer to a few parts of this process. It might refer to the ideal time to send the cease and desist letter or whether you have a timely legal issue altogether. Either way, in a holistic way, you should have some mind for the arc of your situation. In many cases, resolution can be a matter of weeks or months. In a more directly consequential way, you should be mindful of any statute of limitations that might apply, especially if it’s an issue that is years old.

Following-up can be a bit of an art form as well. In general, giving the opposing party 7-14 days to respond before sending a follow-up is a good guideline. They may be exploring counsel themselves or need to digest the entirety of the claim. Or sometimes people delay because it’s part of legal foreplay to frustrate the opposing party - you’ll see this behavior in the law all the time. Needless to say, expect it to take a reasonable amount of time and don’t get frustrated if things don’t go as quickly as planned. Avoid shooting off an angry email in frustration; it’s just an extra bit of evidence that could be used against you.

Consult with an Attorney

If it were a small issue, I might advise someone that drafting their own demand to cease and desist letter might be practical, but that they should still have it reviewed by an attorney. You will probably get it mostly right, but generally, I see people miss something or, as you might expect, not fully grasp the law supporting their claim. A recent client received a demand letter regarding a contract breach where the unrepresented sender didn’t read the contract thoroughly and missed a key detail. Needless to say, she likely wasted significant time and effort drafting a letter just to be corrected.

If it’s serious enough to you, you should consult with an attorney in drafting your demand or at least to review a draft of your letter. Like I mentioned earlier, some of the intangible elements of drafting a demand letter like context, language, and tone will be dramatically improved, simply by leaning on an experienced attorney.

Now, before you think I’m just trying to seduce you, do a quick internet search for cease and demand letters and look over a sample of letters. You’ll likely notice the variety of templates out there as well as the stark difference between those written in formal legal language, those that are not, and the wide range in between.

However you choose to move forward, you just want to make sure that your letter is effective given the recipient and doesn’t omit any key details.

Conclusion

Cease and desist letters are valuable legal instruments despite not being legally binding. Unfortunately, you’ll see them used frivolously quite often and if that’s something happening, you can always reach out for help. But if you’re a situation where you find yourself needing or wanting to send a cease and desist letter, they are valuable tool to set a tone for your dispute or even to show that you’ve retained an attorney (that you mean business!).

Unlike doing your own copyright registration, I would nudge people towards at least having an attorney review or send your demand letter on your behalf. It does help legitimize your claim in the eyes of the recipient. When in doubt, put yourself in the shoes of the person you’re sending the letter to and ask yourself what would be most persuasive in getting them to come to the table or acknowledge and acquiesce to their wrongdoing.

Hope this was helpful! Reach out at anytime with questions