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  • Shreepal "Shreeps" J. Zala

The First Line of (Legal) Defense: Cease & Desist Letters

Updated: Mar 3


A cease and desist letter is a method to assert your rights when you have reasonable belief or evidence that someone has infringed upon your or breached an agreement. It puts the alleged wrongdoer on notice of their illegal or non-compliant action and sets forth terms for curing the wrong. This is typically along with demanding the wrongdoer "cease and desist" whichever behavior (or use of your work) you're claiming is unlawful and that you intend to enforce the letter to the full extent of the law. The tone of a cease and desist letter matters as to the ultimate aim of your letter which I'll unpack a bit more later. In many cases, "ceasing" the behavior is just one aim of the letter.


Cease and desist letters are used throughout a number of business and intellectual property contexts. In intellectual property, they're used for policing infringement across all IP - copyrights, trademarks, and patents. They're also often used for ongoing breaches of contracts or as notice for non-compliance with licenses. If someone is engaging in a behavior which affects your financial interests and without your permission, a cease and desist letter is a good option. It asserts your ownership or financial rights and puts them on notice of legal action.


Cease and desist letters are often used as a first line of defense (or offense) towards an opposing party about the real risk of legal consequences. The opposing party is given notice that you're aware of what they're doing. Ignorance is no longer a mitigating factor and so if they continue the behavior, the consequences might now be worse (particularly if it's earning profits). This is the first step in a legal chain of events that will hopefully bring about a resolution of your issue.


I’ll explain a few points about cease and desist letters and provide insight into how to use them effectively.  Businesses, particularly those that maintain multiple contracts or licenses, are more likely to need this legal service, so having some understanding of their role and function is helpful.


What They Include:


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


Asserting Your Rights


The first thing the letter usually does is describe a lawful claim to your ownership or contract rights. In clear language, you want to explain why you as the sender are claiming your rights, legally or otherwise, in the subject matter that follows.


"Ceasing" the Behavior


It should also include language describing the scope of the wrongful and exactly which infringing actions should be stopped. Sometimes this includes evidence or addendums that show the infringing use or behavior.  The clearer, the better.


Explaining the Legal Consequences


Of course, it’s not enough to state the infringing behavior, almost all cease and desist letters inform the recipient exactly what consequences there may be and what, if any, curative action can be taken to resolve the issue. Earlier I mentioned that not all cease and desist letters have the same tone. Sometimes the aim is is to be non-threatening in hopes that the recipient might agree to compensate you or agree to a license fee for their continued use. After all, they're your ownership rights - if you're ok with the use and just want your cut, then you can draft that into your cease and desist letter. You can draft your letters however you'd like actually but the trick is to dial them in so that the recipient feels compelled to comply with your behavior. Cease and desists letters don't carry legal weight themselves, but they can carry the real prospect of future legal action. Often that's enough to compel the recipient to open a dialogue.


What If It Doesn't Work


What if the recipient of your work fails to comply with your letter? Well this is where they find out if your letter was all bark and no bite. If your letter was written well, your attorney included the steps the recipient should expect next. So if you said you would file a complaint in court after 30 days, well, you then follow through with your complaint. Remember a "cease and desist" is a pre-lawsuit letter, not a court order, so it's not legally enforceable in and of itself. You really only want to be using them if you have a legitimate grievance and feel like you could win in court. The best "cease and desist" letters are convincing enough that the recipient feels the same and for good reason.


How to Obtain a Cease and Desist Letter


The easiest way to obtain a cease and desist letter is to reach out to a licensed attorney in your state with a focus in contract, business, or intellectual property law. It's a straightforward document so the attorney doesn't need to be specialized necessarily, but it will help to have someone familiar with filing complaints under local or state law. Occasionally I've seen people write their own cease and desist letters (especially if they expect the discussion to be civil), but if your letter carries the threat of legal action, it's probably wiser for it to be sent from an attorney's office. People tend to take letter from attorneys more seriously (because they should). The intangible elements like tone and gravitas can be dramatically improved through proper drafting and in many cases, people (or businesses) forward their letters directly to their attorneys (something to keep in mind as well).


Conclusion 


If your issue is serious enough or gone on long enough, you should consider a cease and desist as an effective tool for enforcing your rights. When you wield cease and desist letters well, you'll begin to see and appreciate how effective they can be.




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