Advantages and Risks of a Cease and Desist Letter
A cease and desist letter we mean in this context is a legal document used in situations where you think someone is infringing your intellectual property. It literally demands (or requests) the other party, the alleged infringer, to “cease”, i.e. immediately stop, and “desist”, no longer continue. The condition set in the letter is normally that if the alleged infringer doesn’t comply with the letter’s terms and conditions, legal action will be taken. This means normally a lawsuit.
Advantages of a Cease and Desist Letter
A cease and desist letter has many advantages. One of the most significant ones is that when used correctly, it has a huge potential in preventing long, expensive trials. If the alleged infringer respects your conditions and stops the infringing actions, you have just avoided a messy lawsuit phase. Obviously, not always the owner if the IP plans to take further actions, but if that’s a possibility for you, you should consider the potential benefits related to this scenario.
The second benefit is actual especially in relation to trademarks. By sending cease and desist letters to alleged infringers, you are gathering concrete evidence of the actions you take to defend your mark. This kind of evidence can sometimes become very much needed, because one condition to keeping the trademark is that you enforce your rights when needed. It can also be very useful in future disputes.
One other advantage is that very likely, you’ll get to know the basis for the alleged infringer’s defense if the alleged infringer sends a response to the letter. Even if the alleged infringer wouldn’t comply with your demands, you have now learned his defense and can prepare a counterclaim. If you need to go to litigation, it is expressly valuable to know the alleged infringer’s defense in order to effectively object it.
An important practical advantage is that you may get evidentiary support for a finding of willfulness and enhanced damages if the alleged infringer ignores the letter. This is sometimes worded in the cease and desist letter (our trademark and copyright cease and desist letter templates include a clause about that) to make it more likely that the alleged infringer stops their actions.
Risks of a Cease and Cesist Letter
One very common and easily actualising risk is the label of “bully”. The internet is filled with published cease and desist letters from companies all kinds and size. On the social media, the letters can easily be shared and get negative publicity to the owner of the IP. The general public does not often take the side of the intellectual property right owner in these situations. This is more likely when the alleged infringer is individual and the rights owner a large, powerful corporation.
Nevertheless, this is one very big concern related to cease and desist letters. You want to make sure you have a good case and that the tone of your letter is appropriate in the relation to the alleged infringement and the alleged infringer. For example, sharing your logo on personal social media account should be addressed in a constructive way, when someone copying and selling your authorial works reserves stronger words.
The second risk lies in the situation where the IP owner doesn’t follow up on the letter in a timely manner. In these situations, depending on the jurisdiction, the alleged infringer may get a benefit of different kinds of defences and waivers.