You have a thriving business, a new company, or even a successful blog. Suddenly you receive an official-looking notice from an attorney's office. It contains the dreaded cease and desist letter.
Your first reaction is often concern or fear, but there's nothing in the letter by a court or a judge that orders you to do anything. While it's not something you should ignore, a cease and desist letter can sometimes start a dialogue with the other party. It could eventually end up making the other party sorry they sent it.
Cease and Desist Letter Definition
A cease and desist letter is a letter, usually from an attorney, that advises you to stop certain activities, such as:
- Infringing upon a client's trademark or other intellectual property
- Breaching a contract
- Slander or libel, known as defamation
- Certain types of prohibited activities, such as plagiarizing content
- Any type of behavior that the other party believes is directly or indirectly affecting that party's rights
Cease and desist letters are also known as demand letters. Their purpose is to have people stop doing the alleged offending activity. The issue is, though, in your case, that you may not have done anything wrong.
Evaluating a Cease and Desist Letter
When you receive a cease and desist letter, your first step is to show it to an attorney. Depending on whether the letter is about trademark infringement, harassment, or defamation, you'll need either an intellectual property attorney, a criminal attorney, or a personal injury attorney.
The first thing for the attorney to determine is whether the cease and desist claim is legitimate. If the other party claims you're infringing upon their tulip logo, and your logo uses a different flower in a different color with a different slogan, chances are you're not infringing the other party's trademark. On the other hand, if the logos and slogans are substantially similar, you may indeed be committing trademark infringement.
What a Cease and Desist Letter Can Do
A cease and desist letter contains nothing more than an attorney's opinion that you need to change your actions immediately, but there's no court order requiring you to do so.
By itself, a cease and desist letter can't do much, yet it may advise you that if you don't comply, the other party will sue you. In some cases, the party actually will sue you, while in other cases, they won't. Whatever you do, though, don't ignore the letter or you risk having the other party commence a lawsuit against you.
Defenses to a Cease and Desist
You may discover that—after you've received the letter—the other party is actually infringing on your trademark. You can determine this, with your attorney, if you filed your trademark first, or if the other party has allowed you to continue using your logo and mark without objection for a substantial period of time. This is where an intellectual property attorney is helpful, as they can advise you whether you need to comply or whether you can deny the similarity between the two marks. The attorney also will look for other defenses to trademark infringement, and there are many.
While there's no minimum amount of time for you to reply to the letter, it's advisable to respond as soon as possible. A cease and desist letter may contain an arbitrary date for you to reply, such as within 7 days. While most letters tell you to stop your activities immediately, you can reply to the cease and desist letter in one of several ways.
Responding to a Cease and Desist Letter
If your domain name or trademark is similar to another company's trademark, you can respond to the cease and desist by:
- Having your attorney write a response letter to try bargaining with the other trademark owner for continued use of the name
- Asking the other party for more information, including seeing their trademark to evaluate whether they have a legitimate claim
- After consulting your attorney and finding that the other party is infringing on your rights, writing to the other party, asking them to cease and desist from using their name as it violates your mark
- Ceasing business under your current name and transitioning to a different name, without conceding anything
- Denying by letter that there's any similarity between the marks and stating that your mark is not causing confusion
- Agreeing that the other side is correct and having your attorney send a letter stating that you'll comply with their request
- Filing a declaratory judgment lawsuit before the other domain owner files one, asking the court to determine if you're infringing the trademark
While it's tempting to announce on social media what this other person or company has done to you, don't use social media, text, email, make phone calls, or post anything about the other party. All of these will be admissible against you in court and they will be found. Let the attorneys resolve this for you.
Discuss with your attorney how to save evidence, such as texts, emails, and copies of your website. Don't destroy evidence, as you may need it at a later time. A good attorney will help you respond in an appropriate way.
Because how you respond to a cease and desist letter can take so many forms—and also has serious potential consequences for your business—it's important to understand how to investigate the situation raised by the sender of the cease and desist letter before you respond to the letter.