3 Tips From a Lawyer for Replying to a Cease and Desist Letter
You may be surprised to receive a cease and desist asking you to stop undertaking some form of activity. However, cease and desist letters are common and are sent for a variety of reasons, ranging from a breach of contract to trade mark infringement. This article outlines what a cease and desist is and provides three tips for replying to a cease and desist letter.
Cease and Desist Letters: What Are They?
A person may send a cease and desist letter if they believe that you infringed on their intellectual property rights. In the context of trade marks, this means that the letter’s sender is alleging that you have committed trade mark infringement. Trade mark infringement occurs if you use a trade mark that is substantially identical or deceptively similar to a registered trademark and use it concerning the same goods or services that the registered trademark protects.
For example, if you use Apple Inc.’s logo to sell your own computer products, this is an infringement on Apple Inc.’s legal rights.
A cease and desist letter will typically outline the:
- details of the trade mark owned by the sender; and
- activity you are committing to infringe on the sender’s intellectual property rights.
The letter will demand that unless you stop undergoing the infringing conduct by a certain date, the sender may bring legal action against you. Whilst a cease and desist letter is not an initiation of legal proceedings alone, it can lead to legal proceedings if you fail to respond accordingly. If you have received a cease and desist letter, our lawyers recommend that you keep the following tips in mind.
1. Do Not Ignore the Letter
Whilst it is easy to overlook certain emails and letters, you should not ignore a cease and desist letter. Ignoring a letter can lead to unwanted legal action against you, which can be both costly and time-consuming. Instead, you should take time to read the letter and understand the claim the party is making against you.
If the claim is unfounded or not based on any conduct you have committed, there is a chance that it is fraudulent or a spam letter. Lawyers often come across letters with false allegations of trade mark infringement which you can ignore. If you are not certain about the claims that the other party is making in the letter, you should contact a lawyer to help clarify your position. On the other hand, if you know for a fact that you have committed the alleged infringing conduct, you should take steps to respond immediately.
2. Seek Advice
If you are unclear about the meaning of the claim made in the letter, you should seek legal advice. Not replying or taking action in response to a cease and desist letter can lead to legal action against you, so you must clarify your position with a lawyer. A lawyer can clarify the claim made in the letter, advise you on how to act according to the letter and help draft a response.
You can respond to a cease and desist letter by either:
- stopping the conduct which the letter claims to be infringing;
- ignoring the letter if it contains false allegations; or
- denying that the claim made in the letter is correct.
If you agree with the letter, you should comply with it. This will usually involve you stopping the infringing conduct identified in the letter within the time period specified in the letter. Taking immediate steps to cease infringing conduct will also prevent you from further committing the infringing conduct, which may damage the business’ reputation whose trade mark you are misusing.
On the other hand, if the sender is making a false allegation, you should ignore the letter. However, you should only ignore the letter in the instance where you are certain that the letter’s claim is unfounded. If your assessment is not correct and the claim is warranted, this can expose you to unwanted legal costs.
You may also choose to respond to the letter by denying and defending your position. In the instance where the claim is unfounded or the letter is not representative of your conduct, you may wish to deny the allegation by providing further reasoning to the sender. However, since a defence to the allegation depends on the individual circumstances of your matter, it would be wise to seek legal advice to ensure that you have a strong case to defend your position.
A person may send a cease and desist letter if they believe that you infringed on their legal rights. In the instance where you receive a cease and desist letter, you should:
- not ignore the letter and read it carefully;
- seek legal advice to clarify the meaning of the letter; and
- respond accordingly either by ceasing the infringing conduct, ignoring a letter based on an unfounded claim of infringement, or deny the allegation made in the letter.
Frequently Asked Questions
Although IP Australia can direct you to different resources to help you respond to a cease and desist letter, IP Australia cannot provide you with personalised legal advice on responding.
Before you send a cease and desist letter, it would be wise to seek legal advice to ensure that the infringer has likely committed trade mark infringement. Send a cease and desist letter based on an unfounded claim that can lead to unwanted legal proceedings brought against you.