A “Cease-and-Desist” letter is a written letter requesting that an individual, company, or organization stop a specific action (cease) and refrain from engaging in it in the future (desist). Cease-and-desist letters typically threaten or imply a threat of legal action if the party refuses to comply. Note that cease-and-desist letters are not the same as cease-and-desist orders, which are issued by a judge in cases of illegal behaviors.
Cornell Law School describes a cease-and-desist letter as:
a cautionary letter sent to an alleged wrongdoer describing the alleged misconduct and demanding that the alleged misconduct be stopped. A cease-and-desist letter provides notice that legal action may and will be taken if the conduct in question continues. Such letters are usually written by attorneys and are often sent to stop alleged or actual infringement of intellectual property rights, such as copyrights, trademarks, and patents.
You can look at a cease-and-desist letter as a strong warning, but it is not enforceable by authorities, nor does it have direct legal consequences. However, it can be the first step toward a lawsuit, especially if another person or company’s behavior is causing harm to your business. Sending one helps provide a strong foundation for later legal action if necessary.
When should I send a cease-and-desist?
You have the right to send a cease-and-desist letter when you believe another party is infringing on the rights to, or negatively affecting, something you own. They can also address the breach of a contract and your overall contract rights. An example of this might be a company using a logo very similar to yours, resulting in confusion in the marketplace and harm to your reputation. Cease-and-desist letters can address a variety of business-related issues, including intellectual property, contracts, patents, and trademarks. Before going straight to litigation, consider a cease-and-desist first.
According to The Balance Small Business, your cease-and-desist should contain main points:
Explain the right or property being affected
- State your understanding of the actions you wish to cease and cite any relevant evidence you have to support those facts
- How you believe the individual/company is infringing upon or otherwise adversely affecting that right or property through their actions
- Demand an immediate response and that the actor must stop such action immediately and refrain from doing so in the future pending resolution of any dispute between the parties
- Set a deadline for responding and/or ceasing such action and provide contact information for the person with whom they can discuss this matter
Examples of when businesses might want to send a cease-and-desist include cases of possible:
- Breach of contract. For example, when buyer of a business uses a name or trademark not transferred in the sale of a company, or when a party to a settlement is violating a confidentiality clause in a settlement agreement.
- Copyright and trademark infringement. A cease-and-desist can help make a formal request for someone to stop using your intellectual property before you resort to legal action.
- Debt collection. Debt collectors can often go out of their way to make life miserable for individuals and businesses alike. A cease-and-desist can stop the endless phone calls and investigators.
- Harassment. For some individuals, a cease-and-desist letter from an attorney is enough to compel them to stop harassing someone. In other, more serious cases, you may need to secure an order of protection (restraining order) or domestic violence protection order. Your attorney can advise you on how to proceed.
- Slander and/or libel. If your business is being affected by false or damaging statements, a cease-and-desist can be the first step in ending it. Explain in your letter exactly what statements have caused your damages or losses.
Some cease-and-desist letters include other demands, like compensation or a request for attribution (for example, in the case of stolen or “borrowed” artwork or photography). However, just because you ask, it does not mean that you will get it. A person can choose to ignore a cease-and-desist, in which case you may choose to take your dispute to court.
From a letter to a court case
If a cease-and-desist letter does not resolve your issue, you may consider taking legal action. Your original cease-and-desist can serve to strengthen your claim, showing that you did attempt to solve your dispute out of court, and that the defendant was aware of your claim. This is why it is crucial to have an experienced business attorney send your cease-and-desist letter – not only will the other party know you are serious; your lawyer will also ensure your rights are completely protected.
What if someone sends me a cease-and-desist letter?
If you or your business receives a cease-and-desist letter, do not panic. It does not mean you are being sued. However, do not ignore it. Contact your business attorney immediately so they can review it and let you know if it is a valid claim. In the meantime, you can gather the following information in preparation for that meeting:
- Is the complaint legitimate? Perform an investigation to find out the facts. If the letter of complaint does not contain sufficient information, make note of those deficiencies and the information you will need to adequately consider the demands of the letter and discuss how to best obtain that information in the meeting with your attorney – do not contact the sender on your own prior to meeting with experienced business counsel – you may say something that can be unknowingly be taken as an admission or that might make the situation worse.
- If the letter concerns the use of trademarks, copyrights or other intellectual property, what is the work you are allegedly infringing upon? Have you ever seen it before? Is it similar to yours? Gather all relevant examples for your attorney to look at during your meeting.
- Make a list of all of the people that you know, either in your organization or the sending party’s or otherwise, might have relevant information as to the situation and a short synopsis of what they might know and why that it is important. Do the same thing for any relevant documents, electronic records, and/or communications. Bring all such records to your meeting.
- Do you have any defenses to the allegations? It is advisable to speak to an attorney before responding back to a cease-and-desist with any defenses.
Do not erase or destroy anything relevant to the claims in your cease-and-desist letter. Ensure you save everything, in the event of legal action down the road.
Do I need an attorney to handle a cease-and-desist?
Every business owner understandably asks this question any time they have to decide whether to spend money on an attorney or try to resolve things alone. The answer is that unless you have an extensive legal background in the area of business law, you are likely not even going to know ALL of the questions to ask, much less the answers.
Consulting with trusted and experienced business attorneys, preferably ones who also handle business litigation, before taking any action against someone or in response to a cease-and-desist letter will give you the information you need to decide whether you need an attorney to move forward. The cost of a consultation is going to be minimal when compared to the legal fees required to repair a misstep in an important moment for your business.
A good business attorney can assess the situation based on all of the then-available information and then provide you with options you might not have even considered in moving forward. The attorneys at Hartsoe & Associates, P.C. have many years of experience in not just the law, but in conflict resolution, litigation techniques and strategies, and negotiation and settlement of thousands of disputes in a way that best meets the client’s needs, taking into consideration your budget for resolving things, the impacts on your long-term and short-term rights and economic situation, the overall possible impacts to the viability and reputation of your business, etc. We have seen most of these situations many, many times; take advantage of all of that collected experience when you can.
Why Hartsoe & Associates?
Tony Hartsoe has represented Fortune 100 companies and served as Outside Corporate Counsel for national companies. He has tried hundreds of matters, been involved in the mediation of thousands of matters, and has experience in the areas of business organization, business litigation, bankruptcy, collections, and business coaching –we have the experience you need. As important is our client philosophy: we are here to help you get to the resolution of conflicts as quickly and cost-effectively as possible, not to tell you what you want to hear so you will litigate things for years so that we can make the maximum amount of money off of your problem. We will tell you like it is and provide all the information you need to make informed and business-minded decisions in a straight-forward and expeditious manner. We know you want the truth – and that you can handle the truth.
Do not allow other people or companies to hurt your business with destructive behaviors. The business attorneys at Hartsoe & Associates, P.C. can assist you with a cease-and-desist letter, as well as follow-up legal action in the event it is warranted. We invite you to call us at 336-725-1985, or reach out to us through our contact page to set up a meeting with an assertive, experienced attorney. We maintain offices in both Winston-Salem and Greensboro.
For Tony, the law is a calling, not a job. He is a mountain boy, with simple, straightforward values. Tony loves what he does, and loves to help people through some of the toughest moments anyone will ever face. Learn More