What is a cease and desist letter? Why would you need to send one? And when is the appropriate time to draft one? We’ll answer these questions and more to help you understand why they are important and how you can use them to help protect your business.
What is the Purpose of Sending a Cease and Desist Letter?
According to Cornell Law School, a cease and desist letter is “a cautionary letter sent to an alleged wrongdoer describing the alleged misconduct and demanding that the alleged misconduct be stopped.” The purpose of a cease and desist letter is to motivate another business or person to cease specific activities on threat of legal action against them.
Usually a cease and desist letter is sent in cases where the sending party wants to stop another person or business from harassing, slandering, or breaching contractual obligations without having the headache, paperwork, and expense of filing a lawsuit against them. It acts as a warning to highlight specific wrongdoing and explain the consequences if the recipient continues their current course of action.
Common Uses for a Cease and Desist Letter
Let’s walk through a couple primary uses for a cease and desist letter! If you experience one of these situations, it’s likely that you may want to consider drafting one with an attorney.
Infringement of Intellectual Property Rights
The intellectual property of your business covers everything that your business creates including but not limited to your designs, written work, inventions, and other creations. Especially for service-based businesses, a lot of the value of your business is tied up in your intellectual property, which is why many businesses use cease and desist letters to protect their IP. According to MandourLaw.com, “Intellectual property cease and desist letters typically involve trademarks, copyrights and patents.” You may use a cease and desist letter to notify someone of infringing on your intellectual property, whether it be thru unauthorized use of your designs, company names, patents, or other IP related to your business.
Debt Collection Services
If you have debt collectors calling you about debt that you do not owe, or you would like them to stop contacting you, you can also use a cease and desist letter. The Federal Debt Collection Practices Act (or FDCPA) allows you to communicate this to a debt collector and express your right to avoid receiving further communication from them. Make sure that you always pay what you rightfully owe another person or company so you can reserve cease and desist letters for unauthorized debt collection.
Harassment
You can use a cease and desist letter to stop illegal activity. But the actions of another person or business don’t have to be illegal for you to send one. If you are being harassed, bullied, or you feel you are being discriminated against, a cease and desist letter can let the offending party know of your intent to pursue legal action if they don’t stop their behavior outlined in your cease and desist letter.
Defaming and Libeling Issue
If a person has said something false that could damage your reputation, you can use a cease and desist letter to motivate them to retract, take down, or delete any statements they’ve made that could hurt you or your business. Making false statements about another person or business that damage their reputation is a crime, so this kind of cease and desist letter can be followed up with a criminal lawsuit if the party in question doesn’t perform your requested action in a timely fashion.
Steps for Serving a Cease and Desist Letter
Now that we’ve covered some of the main reasons you might want to send a cease and desist letter, let’s get into the specifics of how you serve one.
Identify the Issue
First you will identify the specific issue that warrants sending the cease and desist letter. You want this to be as specific as possible so your message is not misunderstood or is too high level to be enforceable. Cite the specific action that you want the party to stop and why it could be followed up with legal action if they continue the action moving forward.
Consult an Attorney
Though you don’t necessarily need an attorney to send a cease and desist letter, having an attorney review the circumstances and the letter itself can help you avoid complications and outline the specific legal plan of action you will take if the party doesn’t stop their actions that are harming you or your business.
Gather Evidence
Next you want to gather evidence to show the specific harm that is being done. Gather as much evidence as you can to show the offending party that you understand all sides of the situation and could make a legal case against them if need be.
Draft the Letter
Once you’ve completed these steps, draft the letter outlining the issue, evidence of harm, and what course of action you will take if they continue their course of action.
Review the Letter
We recommend reviewing this draft with your attorney so they can outline the steps they would take in your shoes. If the harm being done to your business is significant enough, this can be an opportunity for you to review your legal strategy with your attorney if legal action needs to be taken later on. Though you can send the letter on your own, you may want your attorney to send it on your behalf to express the severity of the situation to the offending party.
Send the Letter
Once you’ve finalized the letter, identity the contact information for the business or offending party to guarantee that it is received by them. You will likely want to send this via certified mail so you can make sure it’s delivered to the right recipient and you have evidence of them receiving your cease and desist letter.
Legal Considerations for a Cease and Desist Letter
Legal Validity
Even though cease and desist isn’t legally binding it serves as the start of a paper trail if further action is needed, and it serves as an opportunity to collect and detail evidence that you could use in a lawsuit.
Tone and Professionalism
The tone of your letter should be direct, professional, and straightforward. The cease and desist meaning should be clear to anyone reading the letter. Avoid using emotional arguments and stick to potential legal issues and harm.
Potential Repercussions
Anytime you send a cease and desist letter, you want to consider its impact. Depending on the situation, the letter may not stop the offending party from their course of action that’s harming you or your business. Be prepared to take legal action if necessary.
Follow-Up Actions
There are two possible outcomes after you send the letter. Either the offending party stops at your request, or they continue and you have to weigh the costs and benefits of pursuing legal action against them.
Record Keeping
Make sure to keep a record of the physical letter sent to the offending part as well as confirmation of its receipt via certified mail.
Alternative Dispute Resolution
If a cease and desist letter doesn’t bring about your intended result, arbitration or mediation is an option to resolve the dispute without having to go through a more costly legal process.
The Bottom Line
Cease and desist letters can be a powerful tool to protect your intellectual property and the reputation of your business. Use them carefully and follow these steps to make sure that your business stands its ground and prevents others from taking advantage of your business or harming your potential business opportunities.
Frequently Asked Questions
When is a cease and desist letter typically used?
A cease and desist letter is used for infringement of intellectual property rights, debt collection services, harassment, and cases of potential defamation or libel.
What are the key elements of a cease and desist letter?
The key elements of a cease and desist letter are legal validity, tone and professionalism, potential repercussions, follow-up actions, record keeping, and alternative dispute resolution.
Is a cease and desist letter legally binding?
While not legally binding, a cease and desist letter is used to notify someone of a potential suit without going through the formal process of making a legal filing.
How can I ensure the effectiveness of a cease and desist letter?
Make your cease and desist letter to the point, show the area of potential legal issue with specific examples, and highlight the action you’ll take if that specific action does not stop.