What is Cease and Desist letter?
A cease and desist letter can help you formally tell another person or business to stop harassing you (“cease”) and not to restart it (“desist”).
In this letter, you warn the recipient that if he doesn’t voluntarily discontinue an offensive activity within a certain amount of time, you will sue him.
A cease and desist letter is also used frequently in disputes about intellectual property (IP). If a person or a business is infringing upon your copyright, trademark or patent, you can send a cease and desist letter to inform the recipient about your rights and clear your intention to enforce your rights through appropriate legal means. Your letter may include a licensing offer and a threat of lawsuit. Receiving this letter may force the recipient to negotiate a licensing arrangement and could be the first step towards litigation.
Cease and desist letter is also known as Cease and Desist notice, Harassment letter, Demand letter and Cease and Desist form.
What is the purpose of Cease and Desist letter?
Sending out a Cease and Desist letter is much quicker than a formal legal proceeding. In many cases, this is sufficient to discourage the recipient from starting or continuing the offending activity. In cases of IP violation, this letter could lead to negotiation. In case the recipient continues the offending activity, Cease and Desist letter become the first step in a lawsuit.
At the same time, please be aware that burden of documenting and proving that the offending individual or business is harassing you or violating your rights. You may consider taking advise from a lawyer, who can tell you whether your rights have actually been violated and whether you have a legally sound case to send a cease and desist letter.
You should be aware that sending out Cease and Desist letter under wrong circumstances may lead to legal troubles for you. For example, if you threaten a person and a business in your letter, that may amount to blackmail, extortion or other crimes. The recipient may sue you, prove that there is no violation and turn this into a defamation complaint.
When can you send Cease and Desist letter?
Following are the most prevalent and appropriate reasons to send cease and desist letter:
1. Harassment: If a person calls you all the time, visits you repeatedly without invitations or threatens you, you can send him a cease and desist letter as a warning. Harassment may also include someone making negative comment about you despite you asking him to stop. Harassing behavior could be personal to you or could be directed towards your business.
2. Harassment by Collection Agency: Even when you owe a debt, you can’t be harassed. If a debt collector consistently and frequently calls you, uses profane language, threatens you or publishes non-payment information about you, you can give him a cease and desist letter. After receiving the letter, he may contact you one more time to acknowledge your letter and state other legal action that he may pursue.
3. Character Assassination: If someone is making untruthful statement about your business or spreading rumors about you, whether verbally or by publishing in print – you can send cease and desist letter to that person. Someone stating that “you are a jerk” could be taken as his opinion. But someone stating that “you are engaged in shady business practices and cheat your customers” could be taken as harmful for the reputation of your business and appropriate case for sending out cease and desist letter.
4. Intellectual Property: If you find someone plagiarise your work, such as video, audio, music, graphics, software application, original web content, articles and sculpture, without your permission, you can serve him a cease and desist letter for infringing upon your copyrighted material. As soon as you create or author such work, you have a copyright over it. Same goes for your registered trademark and patent.
5. Contract Violations: If one of your employees quits and starts soliciting your clients or offering jobs to your other employees for his new company, you can send him a cease and desist letter, provided you have signed a non-compete agreement with the that employee during his employment term. You may warn the offending employee that such breach of contract could lead to potential criminal charges.
What is Cease and Desist order?
A Cease and Desist order is issued by a court to prevent an individual or a business from beginning or continuing an offending activity until a trial can be held to determine whether the said activity should be allowed to continue. This is also called a temporary injunction. After the trial, depending on the merits of the case, the court can order permanent injunction to permanently stop the activity.
How to get a Cease and Desist order?
Depending on the specific circumstances, you can file a lawsuit or take other court action to request a court to order a Cease and Desist to the offending individual or business. For example, if you are being harassed, you may apply for a restraining order.
You should consult a lawyer for appropriate legal measures.
Is Cease and Desist letter enforceable?
Cease and Desist letter is not legally binding and, hence, not legally enforceable as it is an opinion of an individual, typically that of a lawyer.
On the other side, Cease and Desist order has a legal standing and failure to comply with it is punishable by the court.
Do I have to send a Cease and Desist letter before suing someone?
You don’t have to send a cease and desist letter before suing an individual or a business for an offensive activity or infringements on your rights.
If you directly sue someone, you should be prepared to answer to the court why you didn’t try to work out differences with a cease and desist letter.
More importantly, the defendant can claim that they were unaware of any violations. For example, if you are suing someone for copyright infringements, the defendant may claim that they didn’t know if the copyright belong to anyone or that if they are infringing on someone’s copyright. In such cases, you may get awarded less in your damage claim.
With a cease and desist letter, you formally notify the defendant of violations. In many cases, receiving this letter compel the defendant to either stop the unwanted activity or come forward for licensing negotiations in case of intellectual property infringements. If the defendant chose to ignore your letter and continue with violations, your damage award could increase, if you win the lawsuit.
Do you need a lawyer to send Cease and Desist letter?
You can write cease and desist letter yourself. For small claims, you can write a letter based on tips in this article.
If you chose to involve a lawyer, he would be able to advise you whether your rights have actually been violated and, if so, whether you have a enough grounds for legal action. Also a cease and desist letter from a lawyer is usually taken more seriously.
How to select a lawyer to send Cease and Desist letter?
Lawyers are bound by their professional code of conduct that dictates that a lawyer will not present, participate in presenting, or threaten to present a criminal charge solely to obtain an advantage in a civil matter. So a lawyer would look for some pre-conditions in your claim before writing Cease and Desist letter for you. Specifically,
- The charge must be related to civil matter at hand. It should not include any criminal charge that is unrelated to civil matter as that is considered as a deceptive tactic.
- The lawyer must believe in the civil claim. Any frivolous charge, that is unfounded and without merit, can expose the lawyer to potential counter claim of defamation by the recipient of the letter.
- The lawyer must not appear to have authority over legal proceedings that would follow a Cease and Desist letter. For example, if a lawyer states in the letter that if the recipient doesn’t accept the demands, he would face criminal charges. This would imply that the lawyer has ability to achieve results by influencing the legal process and, hence, would be flagged as professional misconduct.
Any lawyer who breaches his professional code of conduct by making or participate in making a false claim would be severely penalized.
With above considerations in mind, you should chose a lawyer who helps you in ascertaining that your rights have actually been violated and, if so, you have a sold ground for legal action following sending Cease and Desist letter, in case the recipient chose to ignore your letter.
Can you email Cease and Desist letter?
You should send Cease and Desist letter in a way that it could be traced.
The recipient may refuse to take the letter or sign on delivery receipt. To establish later in the legal proceeding that you notified the recipient of violations, you should be able to demonstrate that the letter was delivered or delivery was attempted.
You could send Cease and Desist letter by email but you should ensure that you have email delivery or read receipt for later reference.
To be on a safer side, you send the letter from registered post or reputed courier to ensure that it was safely delivered and received. You should save copy of the letter with delivery or read receipt for your lawyer.
You may allow 2-3 weeks to the recipient to respond to your letter. In case you don’t any response after that, you should consult a lawyer to initiate appropriate legal process.
How to write a Cease and Desist letter?
Your Cease and Desist letter should have following key elements:
- Sender: your or your business’s name and address
- Recipient: name, address, phone number of an individual or business whom you are asking to stop an offending activity
- Reasons: details about the offending activity and the harm that the activity has caused you or your business. you may attach any documentary proof of violations. If it’s about some IP violation, you may include a proof about your ownership of copyrighted material, trademark or patent.
- Warning: warning that further legal action will follow if the recipient doesn’t stop the offending activity
- Deadline: a time period by which the recipient must stop the offending activity
Legal Terms Explained
- Cease: Stop an offensive activity
- Desist: Not restart an offensive activity
- Libel: It is an attack on your reputation via print. For example, someone publishes a written or pictorial statement that is defamatory in nature.
- Defamation: It is a verbal attack on your reputation. For example, someone intentionally makes a false statement that harms your reputation, or which decreases the respect or regard in which your are held.
- Injunction: It refers to a court order preventing an individual or business from beginning or continuing an action until a trial can be held. After the trial, a court can order permanent injunction.
Sample Cease and Desist Letter
Cease and Desist Letter for Copyright Infringement
SUBJECT: CEASE AND DESIST
I am the copyright owner of [describe copyright protected product, website etc, the “Work”] and I have received evidence that you, as a director/owner of [name of infringing business], are infringing use of the Work.
It appear that [name of infringing business] has copied the [infringing product, website etc] from the Work. You neither requested nor received permission to use the Work. Therefore, your unauthorized copying and use of the Work is infringement of my copyrights in violation of United State copyright laws. I am considering appropriate legal measure, which may lead to following remedies:
- an injunction against further infringement. Such an order will prevent you from future use, copy, or distribution of the Work,
- impounding or destruction of infringing copies,
- salutatory damages of up to $500,000, and
- legal costs and lawyer’s fees
I demand that you do following:
- Immediately cease and desist from marketing, distributing or selling any [infringing product, website etc],
- Immediately destroy all unauthorized items in your possession or control including, but not limited to, image, design, recording, sample, product and brochure which include the Work,
- Immediately agree in writing that neither [name of infringing business], you or any person or entity acting on behalf of [name of infringing business] will directly or indirectly engage in further unauthorized use of the Work,
- Immediately provide your co-operation to identify any and all parties that have any unauthorized items which include the Work
If I do not receive your affirmative response by 13 August 2018 (give a time period of 15 days), indicating your full compliance with above demands, I will be forced to commence a lawsuit against you.
I would like to resolve this matter amicably and assume you do as well. I hope that after being appraised of the foregoing, you will immediately choose to agree voluntarily to our demands above and avoid any unnecessary legal interventions.
Thank you for your immediate attention to this matter.
Cease and Desist Letter for Contract Violation
Addressed to a former employee, who is soliciting your customers
SUBJECT: CEASE AND DESIST
This letter serves as a notice to you that you must immediately cease and desist your solicitation of customers of [your company name].
You signed a non-disclosure agreement (the “Agreement”) with [your company name] at the time of your commencement of employment on [start date of employment]. The Agreement provide that you must not compete for a period of two years, directly or indirectly, in the United States or anywhere else where [your company name] has made sales during the term of the Agreement. Further, the Agreement provides that you must not solicit any customers or prospective customers while you worked at [your company name].
It has come to our attention that you are soliciting our customers including, but not limited to, [your customer’s name].
The fact that you are working for a competitor, [competitor employer name], and soliciting customers of [your company name] is a complete breach and violation of the Agreement. In addition, by our customers, you and your current employer, [competitor employer name], are tortiously interfering with the agreements between [your company name] and its customers.
If you continue to solicit customers of [your company name] and you do not cease soliciting the customers of [your company name], I will be forced to commence a lawsuit against you and your current employer, [competitor employer name]. I will immediately seek a temporary restraining order against both you and [competitor employer name], and will also bring a cause of action for breach of contract and tortious interference with contract against you and [competitor employer name], seeking monetary damages to be proved at trial. Hopefully this recourse is not necessary, but I have my interests to protect and will vigorously do so.
Cease and Desist Letter for Harassment
SUBJECT: CEASE AND DESIST HARASSMENT
This letter serves as a notice to you [or your business] that you must immediately cease and desist following activities against and towards me, including, but not limited to, the following:
- [list out specific harassing behavior with date and place. For example: sending me lewd chat message on 12th July 2018 at 1 AM, a copy of which is attached with this letter. Another example: abusing me in in front my my colleagues on 18th July 2018 in the office]
Your behaviours are unwanted, unwelcome, threatening and have become unbearable to me. I have a right to remain free of harassment. Because of your harassments, I have suffered in the following ways:
- Substantial damage to my professional reputation
- Substantial damage to my personal character
- Emotional and physical stress
I demand that you cease and desist from your above activities immediately. If you do not cease and desist, I will be forced to take appropriate legal actions against you and will seek all available damages and remedies.
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