Getting served with a cease and desist letter can be a stressful experience, particularly if it’s your first time receiving one. Though it’s not a legal document, this letter could lead to a lawsuit if you don’t respond to it in a timely manner.
What Is a Cease and Desist Letter?
A cease and desist letter is a letter that alleges you are doing something unlawful. Most of these letters claim trademark or trademark infringement, but they may also be used in defamation claims, breach of contract situations, patent infringement, and so on. The letter will ask you to stop the unlawful behavior, and may also demand a settlement amount.
The reason why cease and desist letters are so pervasive is simple—they’re simpler and ten to be less expensive than a lawsuit. If someone believes their intellectual property has been infringed, their lawyer will likely advise them to send a cease and desist letter. If the recipient complies with the letter’s demands, the claimant may save thousands of dollars in legal fees.
Responding to a Cease and Desist Letter
As you can see, receiving a cease and desist letter isn’t a reason to panic. It’s not enforceable – it’s simply a claim that alleges you have done something wrong. You should still respond to it, but take your time to make an informed decision. Every cease and desist letter includes a deadline for responding, so take advantage of that and determine what claims are being made first.
In general, the best thing you can do after receiving a cease and desist letter is to consult with an attorney that specializes in the claim that is being asserted in the cease and desist letter. Many of these letters contain legal arguments and may be difficult to fully understand without professional help. Hiring an attorney will also help you avoid actions that could expose you to additional legal risk, such as complaining about the letter on social media.
Once your attorney has reviewed the letter, they’ll help you prepare a response. That can recommend a number of different ways to respond. In some cases, your attorney may want to reach out to the claimant’s attorney to request further information and even discuss the possibility of a settlement. If the claim has no merit, a response should be crafted to point that out. It also may be appropriate to respond with a full analysis of the facts supporting your position.
In certain circumstances, cease and desist letters may be used against the claimant. A cease and desist letter risks that the recipient, or a party related to the recipient (such as a customer or supplier), may file for a declaratory judgment in a court in their own jurisdiction perhaps a jurisdiction that is less preferred by the sender. A declaratory judgment is a binding judgment from a court defining the legal relationship between parties and their rights in a matter before the court.
If you can’t resolve the issue through negotiations, your choice becomes simple: fight or comply with the letter’s demands. Fighting will likely involve a lawsuit, perhaps a declaratory judgment lawsuit, so it’s best to discuss the projected costs of defense with your attorney first, and strategize with respect to the best course of action depending upon the balances of costs and losses between each of the alternatives.