A cease and desist letter can be a nightmare for a business owner. More often than not, an order to cease and desist comes unexpectedly. Most ethical business owners do not intend to do anything that would infringe upon another business owner’s rights, but it can happen accidentally or without the business owner’s knowledge. In many cases, a cease and desist letter may be frivolous or be legally unenforceable. If you have received a cease and desist letter, the most important thing to do is to not panic. Depending on the severity of the demands in the letter, hiring an attorney to draft a response may be the best option for you. Before drafting or responding to a cease and desist letter, it’s important to know what a cease and desist letter is and the legal issues revolving around it.
What is a Cease and Desist Letter?
A cease and desist letter, also known as a demand letter, is a written communication that demands that the recipient “cease and desist” from actions that infringe upon the sender’s legal rights or ownership. In most cases, a cease and desist letter will either threaten or imply legal recourse, such as a lawsuit, if the recipient does not stop the actions alleged in the letter. In some cases, the letter will even demand compensation for damages already caused by the actions committed that they are demanding to end.
Cease and desist letters may be sent by regular mail or email. While there is no legal requirement that a cease and desist letter be filed by a law firm, this is often the case, particularly when the individual submitting the letter has or claims to have experienced major damages from the behavior and/or is requesting a drastic change in the recipient’s business operations.
A cease and desist letter may be used in several cases, but most commonly they relate to infringement of intellectual property rights, including trademarks, copyrights, and patents. A cease and desist letter may even claim the recipient has stolen or attempted to steal clients from their business. Cease and desist letters frequently occur when partners or employees of an organization or company separate and use things like business practices or client lists to unfairly compete.
It’s important to note that a cease and desist letter is only making allegations. It is not a legally binding document and may be completely frivolous or difficult to support in court. Even if it is drafted by an attorney, and most reputable attorneys will not help draft a cease and desist letter without merit, it does not guarantee the letter must be followed.
However, if you have received a cease and desist letter, your best bet is to contact an attorney to review the details surrounding your case and advise you how to respond. There are some basic things to keep in mind when responding.
Responding to a Cease and Desist Letter
There are three ways to respond to a cease and desist letter and your attorney can best advise you on each. Your options are:
- Ignore: Yes, a cease and desist letter can be ignored. If it is based on frivolous accusations, or would be indefensible in court, this may be an option available to you.
- Comply: If the claims of the letter are valid and/or you don’t have a strong case against the letter, complying may be your best option. In some cases, complying with a letter may have far less negative ramifications to your business than if you were to lose in court.
- Prepare a Response: There are many reasons preparing a response may be your best option. If the claims are not frivolous, but may be due to a misunderstanding, preparing a professional response explaining yourself or the actions of your business could end the problem immediately. A little professionalism can go a long way. If the claim has some merit, you may be able to open negotiations to a settlement or agreement that prevents going to court and mitigates or eliminates damages. In some situations, you may even have your own claim against the other party and submit your own cease and desist letter in response. There are lots of options here, but most important is remaining professional and consulting with your attorney.
When responding to a letter, be sure to keep your emotions out of the response. Keep in mind that anything you say in response to their letter can be used against you. For this reason, an attorney is often the best person to send the letter. It may even make the adverse party back down realizing that you have legal representation.
Finding a Professional California Business Attorney
Webb Law Group is a reputable business law firm with experience in matters involving California law, including responding to or creating cease and desist letters. Having a reputable attorney by your side for these matters will help give you the best possible chance of a positive outcome in your case. If you feel you need legal representation, we are happy to review your legal needs and provide consultation and support where necessary.
For questions, or to schedule a consultation, contact us today at 559.431.4888 (Fresno) or 619.399.7700 (San Diego).
