What is a Cease and Desist Letter?
A cease and desist letter is a written form of communication which is sent to the concerned recipient to “cease and desist” from carrying out certain actions which violate or infringe the rights of the sender. As the words suggest, cease means to “come or bring to an end” and desist means to “stop doing something.” These letters are written by lawyers or agents who threaten the recipient with a lawsuit if the demands within the letter are not met. They are usually written in a manner which instills fear in the recipient to either stop a certain activity or to seek compensation for the same. It is a common practice to send cease and desist notices through the post (printed or handwritten) but this century has seen a turn in events where the latest trend is to send it through emails. There is no compulsion or written rule that the cease and desist letter has to be sent by a lawyer or an agent, but it is always better to have it prepared, proofread and sent by them to the concerned party.
The use of cease and desist letters comes up in various areas of law which include:
- infringement of Intellectual property rights ( trademarks, patents, copyrights)
- cases of defamation- libel and slander
- breach of contract
- debt collection
What It is not?
It is important to understand that a cease and desist letter is not one which has a legally binding value. It is, to be put in simple terms, a written form of allegations and claims made by the sender. The sender through the lawyer may claim a lot but it is not necessary that all of them have to be complied with, or further a judge or court may agree with the same. A cease and desist letter is the first step, before legal action is taken. It is just a method by which both parties can come to a compromise and when negotiation fails, that is when the sender takes legal action. The cease and desist letter will usually depict a time frame within which the claims have to be complied with. The time may be specified in days, weeks or months.
What Do you Do After Receiving a Cease and Desist Letter?
.When a cease and desist letter has been received, people usually feel angry or they fear the allegations and its consequences. When angry, people usually tend to reply in an ill-considerate way and when struck with fear, people tend to ignore the problem. Both which would lead to unnecessary consequences. So if the letter is not dealt with in the right manner, it will definitely lead to a law suit, which could have been easily avoided. Once a cease and desist letter has been sent to you, the following steps can be taken, most of which are very vital and precautionary in nature.
Hire an Experienced Lawyer
It is good to be on the safer side and hire a lawyer or a law firm to reply to the cease and desist letter on your behalf. Choosing a good lawyer who has dealt with similar cases in the specific area of law that the cease and desist letter covers, would be the best for he/she would help you understand the contents as well as plan out how to properly reply to the allegations without facing any consequences. Hence before finding a lawyer, you should do some research as to the allegations made and which segment of law is covered, for example, infringement of trademarks, so as to find the perfect lawyer in the respective field of law. This will create a conflict of interest. Once the lawyer understands the background, facts and situation, he will be able to advice on how to approach and reply to the cease and desist letter.
Comply With The Claims And Demands
In certain cases where the allegations in the cease and desist letter require less action or less amount of compensation, it is cost effective as well as time-saving to comply with the same and come to a settlement. There are many cases where even if the receiver feels the senders allegations have no merit, complying with the same, would not disrupt his/her time or work.
Prepare a Reply
The reply to a cease and desist letter will include denying all the allegations made and solutions to settle the matter. Sometimes, you may feel the claims made by the sender are not meritorious. So while drafting the reply, it is relevant to address every point made and disprove all the unworthy points. Counter- demands and counter- allegations have to be made which should be backed by credible information from your side. Make sure that your emotions don’t come into the picture while making the reply. The key is to keep it civil and simple.
It is recommended to gather and file all emails, documents, contracts etc so that it can be used as evidence in case the sender decides to take the matter to court. Do not dispose of the cease and desist letter for any reason. Copies of the cease and desist letter, as well as the letter in reply to the same should be kept in a safer place. All this information will be useful while discussing with lawyers on the course of action to be taken during the pendency of the suit.
Steps to be Avoided While Preparing a Reply
Style of Writing
The style or language or method of writing of the cease and desist letter received may not be polite and respectful in certain cases but that should not be disrespectful or sarcastic as it might be used as an argument by the sender; if he takes legal action. Hence, the reply has to be of merit and can be filled with legal jargons but should not be defiant or uncivil in any manner.
Choosing to Ignore the Letter
Sometimes the demands are ignored on purpose because of personal or other reasons. By doing so, you have to be very sure that there are no dire repercussions. It is better to reply the same. As they say, prevention is better than cure!
Everyone running businesses face problems and cease and desist letters are a part and parcel of the same. Hence the best way to approach it is to remain calm and follow the simple steps as given above so as to resolve the issue.