Benefits of a Cease and Desist Letter
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If you have a trade mark for your business’ logo, name or branding, you will want to protect it from infringement. If you find somebody who is infringing your trade mark rights, one way to stop them is with a cease and desist letter. A cease and desist letter is a document that requests a party to stop infringing on the senders rights. When you want to stop someone from infringing your intellectual property rights, sending a cease and desist letter is likely one of the first steps you should take. A cease and desist letter typically includes a warning notifying the other party that if they do not stop their infringement, you may take legal action against them. This article will explore some of the benefits of a cease and desist letter.
Why Send a Cease and Desist Letter?
Firstly, it informs the recipient of their behaviour and why you are demanding that they cease their acts. Before you raise their attention to a breach or infringement, the recipient may not even be aware of it. The letter formalises the communication between you and the recipient that you require them to cease and desist from their infringement. Broadly, a cease and desist letter serves three goals:
- notifying the party who is in ‘default’ of the breach;
- notifying the other party of the possibility of legal action, including a claim for damages; and
- compelling the defaulting party to stop engaging in the infringing activity.
The most important aspect is that the letter informs the receiver that if they do not cease the behaviour described in the letter, you may take legal action against them.
Advantages of a Cease and Desist Letter
Avoid Legal Action
A cease and desist letter offers several benefits. One benefit is that, when used correctly, it offers the potential for avoiding lengthy and expensive trials. If the suspected infringer follows your terms and stops the infringement, you have just avoided potentially costly litigation.
Provide Evidence of Defending Your Use of Trade Mark
The second benefit is substantial, particularly in terms of trade marks. You are gathering actual evidence of the measures you are taking to defend your mark by issuing cease and desist letters to alleged infringers. Because one of the criteria for preserving the trade mark is that you assert your rights when necessary, this type of documentation is useful.
Bring Issues Into the Open
Another advantage is that if the alleged infringer answers the letter, you will almost definitely understand the basis for the alleged infringer’s defence. This will help you prepare a counterclaim if the party does not comply with your demands. If you need to go to court, knowing the alleged infringer’s defence is essential for effectively objecting to it.
Show Willful Intent
If the claimed infringer fails to respond to the letter, you may be able to use this to gather evidence to support a finding of willfulness and subsequently, increased damages. For example, to improve the possibility that the alleged infringer stops their conduct, this reference to ‘increased damages’ is sometimes included in the letter.
What to Do if Someone Sends You a Cease and Desist Letter?
Receiving such a letter does not mean you have committed the accused offence. However, you should not dismiss such a letter lightly. For example, failing to properly address the issues stated could result in legal action against you. This is inconvenient and a significant drain on your resources even in the best of circumstances.
You should seek legal guidance as soon as possible so that you can decide on the next steps promptly. You should work together to decide if you have performed the breach set out in the claim. This is especially important in the case of trade mark infringement. If you continue infringing somebody else’s trade mark you may face a significant cost penalty.
Key Takeaways
Before deciding whether to send a cease and desist letter or what to do when you have received one, you should consider whether another party:
- has infringed on your trade mark; and
- is using your property without authorisation.
If someone has sent you a cease and desist letter, you should consider:
- whether what they are saying is correct;
- what actions you need to change to continue meeting your legal obligations.
If you have any questions about the benefits of a cease and desist letter, contact our experienced trade mark lawyers on 1300 657 423 or fill out the form on this page.
Frequently Asked Questions
Any intellectual property owner can send one. If somebody infringes on your rights, you can send a cease and desist letter to try to resolve the issue at the earliest possible opportunity.
It depends on the length of time you state in the letter. However, giving the recipient between 14 and 21 days is usually recommended.