A cease and desist letter does not automatically signify a lawsuit. It is simply a warning about illegal behavior that lets you know that further penalties could follow if the behavior, such as patent infringement, doesn’t stop.
Here are some ways it is possible to violate the intellectual property of another:
- Plagiarizing someone’s work
- Using an invention without the right to access it
- Engaging in illegal or suspicious activity that involves someone’s work
The first step that you can take to address these issues is to send a cease and desist letter. This letter puts the person in violation on notice that they are engaging in illegal use of a property. It advises them to stop, or further action will occur.
Other names for a cease and desist letter include:
- Cease and desist notice
- Cease and desist form
- Demand letter
- Stop harassment letter
All of these examples are simply formal letters warning the person to stop their illegal behavior.
What is a Cease and Desist Order?
A cease and desist order is different from a cease and desist letter. The main difference is in terms of legality. Letters have almost no legal standing. Orders do. A cease and desist order is granted by a court. It serves as a temporary injunction. The party that receives the order must stop what they’re doing until a trial can be held. After the trial, a permanent injunction may be ordered.
Reasons to request a cease and desist order include:
Libel is when you are being attacked in print. Defamation is a verbal attack on your reputation.
What Are the Uses of a Cease and Desist?
There is a number of cases that might lead someone to issue a cease and desist. These include:
- Character assassination, libel, slander, or defamation
- Trademark infringement
- Copyright infringement
- Patent infringement (Design or Utility)
- Violation of non-competition agreement
- Harassment, including by debt collectors under the Fair Debt Collections Practices Act
- Breach of contract
A cease and desist can also be used to stop contributory infringement. This is when someone knowingly contributes to infringement, but did not actively participate in it. It is sometimes known as “secondary liability” or “contributory liability.”
Trademarks, copyrights, and patents are the three major ways to protect intellectual property. Trademark and copyright apply the moment you are the author of something. They also apply when you begin using a specific brand, phrase, or trade dress in connection with your professional practices. Filing official paperwork for these is optional. However, registering your protections can hold great weight in court.
Patents, on the other hand, are more complex and expensive. They must be registered for protection. They protect inventions, physical creations, and the processes that go into their functioning.
When Should I Send a Cease and Desist?
Use a cease and desist notice if you want to issue a formal warning to someone to stop doing what they’re doing. This includes using your property, harassing you, or illegally using your trademarks.
Usually, but not always, a cease and desist is the first formal step following an informal notification. Many people first informally ask the infringer to stop what they’re doing. If they don’t, a cease and desist is the next step. It adds a weight of formality to your request. It can also serve as a step to begin further legal processes, if necessary.
A compelling reason to use a cease and desist is that it is much faster than beginning formal legal proceedings. It also often stops the offending behavior without the need to take it any further.
What Legal Weight Does a Cease and Desist Notice Have?
In practical terms, a cease and desist has no real legal weight. However, it fulfills an important function in the legal process. It establishes that you have told the offender about their violation. They now cannot claim they didn’t know they were in violation.
Such a letter places an informal injunction on the actions of the person in violation, who can then:
- Stop their behavior
- Challenge the validity of the letter
- Ignore it, and face the consequences of further legal action
Say the cease and desist is legitimate but challenged. The next step is a formal hearing to review the validity of the demands in the notice. The judge will determine if the defendant must stop the behavior. Failure to comply after that is punishable by law.
Can I Sue Without Issuing a Cease and Desist?
Yes, you can file a civil suit without writing and sending a cease and desist. However, issuing the notice has benefits. First, it can begin negotiations to settle the matter without a court battle.
Second, it puts the defendant on notice. It’s more difficult to sue someone for doing something wrong, if they didn’t know they were doing anything wrong.