This guide has four key factors to consider before sending a cease & desist letter. Examples in the guide are based on intellectual property law, but the four factors apply to other legal situations as well.
A cease and desist letter (also sometimes called a "demand" or "complaint" letter) is a written communication from a party seeking to enforce rights being claimed against the recipient. Basically, the sender is asking the recipient of the letter to "cease and desist" from actions that currently and prospectively infringe the sender's rights. A cease and desist letter may also demand compensation for violations of rights that took place in the past. Many legal guides here on Avvo have been written about what to do if you receive a cease and desist letter-this guide is for those considering sending one. As simple as writing a letter sounds, there are key strategic considerations that must be taken into account before sending a cease and desist letter. Failure to carefully weigh the legal considerations can lead to costly and even fatal errors that can irreversibly affect the sender's rights. A poorly written cease and desist letter, or one based on a sample letter from an online legal forms provider that does not take into account the specific circumstances of the dispute, can actually send parties that could have settled amicably hurtling needlessly towards costly litigation. The four factors to consider before sending cease and desist letters are (1) identifying the sender's rights, (2) identifying who the recipient(s) should be, (3) identifying what the recipient did wrong, what the sender wants done, and what will happen if the recipient doesn't do it, and (4) the overall tone of the letter.
1. IDENTIFY YOUR RIGHTS.
First, the rights being enforced by the sender must be clearly identified, and the scope of the rights asserted understood. For example, if you are the owner of a copyright registration for a sound recording, the cease and desist letter could state information such as the title of the sound recording or the registration number. Dealing with IP that is registered in the sender's name can be straightforward because the scope of rights owned by the sender of the letter is defined. However, problems identifying the scope of the sender's rights can arise with unregistered IP such as common law trademark rights, or situations where the sender is asserting rights granted under a license. The main problem to avoid in this regard is asserting rights the sender doesn't have. For example, if common law trademark rights (rights obtained through use, not a trademark registration) are asserted in a cease and desist letter, the scope of rights may be geographically limited because the sender's use may only have occurred in their home state or locality. If the recipient of the letter has been using the same or a similar trademark outside the sender's geographic area of use, the cease and desist letter may be essentially toothless because rights outside the scope of what was actually owned were asserted. Likewise, with rights obtained under license, the sender's ability to enforce their rights would be limited in scope to what the license actually granted. Sometimes, licensing agreements may limit the licensee's right of enforcement, so again, the cease and desist letter could be ultimately ineffective if the license did not grant what the sender seeks to enforce.
2. IDENTIFY THE POTENTIAL RECIPIENT(S).
The sender must identify the recipient(s) of the cease and desist letter. First, the identities and contact information of anyone who could be considered a potential infringer must be ascertained. In the simplest scenario, this could involve identifying one individual or business with an easily discoverable physical address like a place of business. But what if the infringer is someone posting an infringing copy of your song on a website or a Facebook page? In these instances more "detective work" may be necessary to identify where the cease and desist letter should be sent. Another important consideration (at least in the IP context) is whether in addition to direct infringers (persons or companies that actually engaged in infringing behavior) there may be indirect infringers who could also be legitimate recipients of the cease and desist letter. Indirect infringement comes in two forms: Contributory infringement or vicarious infringement. Contributory infringement occurs when a party knowingly causes, induces or materially contributes to the direct infringer's conduct. A party can be liable for vicarious infringement if they were in a position of management or control over the direct infringer and materially benefited from the infringement. Also, at this stage the sender should decide if compliance with DMCA takedown procedures is warranted.
3. IDENTIFY WHAT THEY DID WRONG, WHAT YOU WANT DONE, AND WHAT WILL HAPPEN IF THE RECIPIENT DOESN'T DO IT.
A cease and desist letter should clearly state for the recipient what they did wrong, when they did it, and what the sender wants them to do in response to the letter. The actions or behavior identified must comport with the scope of rights being asserted, or else the letter will not be effective. For instance, if the sender is the licensee of a film with only the rights to reproduce, distribute, and display the work, a cease and desist letter would not be warranted against the creator of a derivative work based on the licensed film because the sender did not receive the derivative work right under the license. Careful thought should also go into what the sender wants the recipient to do in response to the letter. Outrageous demands that are practically impossible to comply with might be regarded as frivolous or irrational by the recipients of such letters, thus detracting from the sender's credibility. A demand to, for example, destroy all infringing copies of a CD within 24 hours, when the recipient has a nationwide distribution network, would arguably be an outrageous demand to put in a cease and desist letter. Demands should be firm, but nevertheless possible for the recipient to comply with, because sending a subsequent cease and desist letter with a demand that is watered down from the first version that had an outrageous one weakens the sender's position in resolving the dispute. The sender should identify what will happen if the recipient doesn't comply with the letter's demands. Depending on the tone of the letter (see #4) this can be either explicit, implicit, or open ended.
4. CHOOSE THE RIGHT TONE FOR THE LETTER.
Arguably the most important overarching consideration in writing your cease and desist letter is the TONE of the letter as a whole. Tone is paramount because of the possibility that a preemptive lawsuit known as a declaratory judgment action might be filed against the sender of a cease and desist letter. If the recipient of a letter has "a real and reasonable apprehension of litigation" then a declaratory judgment action can be filed against the sender. Declaratory relief actions are prevalent in the IP arena as a way to respond to cease and desist letters. Thus, a cease and desist letter that is worded too strongly with an overtly threatening tone can give the recipient/infringer the basis for a lawsuit against the sender whose rights may have been infringed. A declaratory judgment lawsuit can be problematic for the sender of a cease and desist letter for three main reasons. First, the sender may not be ready, either financially or logistically, to respond to a preemptive lawsuit. Once such a lawsuit is filed, it is usually advantageous to file a counterclaim against the recipient of the letter based on the very allegations of infringement contained in the letter. However, if the sender does not have the financial resources, or the facts of the case have not yet been developed, the sender/declaratory judgment lawsuit defendant could be at a severe disadvantage for ultimately asserting their rights. Another consideration related to resources is that a cease and desist letter recipient/plaintiff will most likely file a declaratory judgment action in their "home court", which if distant from the sender/defendant's jurisdiction could cause logistical and financial headaches. Second, cease and desist letter recipients/plaintiffs usually attack the validity of the sender/defendant's IP rights when filing declaratory judgment suits, and also offer up evidence that no infringement took place. If the cease and desist letter sender does not have strong IP rights, or did not have enough facts to legally prove infringement in a court at the time the letter was sent, the sender would now be at great risk of not only losing an infringement argument but also losing their own IP rights. Finally, a declaratory judgment action usually forecloses the possibility that a quick settlement can be reached between the sender and recipient of the cease and desist letter on the terms that the sender was originally seeking. Once filed, a declaratory judgment action can give the letter recipient/plaintiff stronger ground from which to negotiate, especially if the sender/defendant was caught flatfooted by the lawsuit. Some situations may be inevitably destined for litigation regardless of what is written in a cease and desist letter. Therefore, legal counsel is highly advisable when writing and sending cease and desist letters; form letters from online legal services websites should be avoided. An over-the-top, "shock and awe" cease & desist letter making outrageous demands and threatening litigation that is sent to the wrong recipient at the wrong time can lead to unwanted or untimely litigation.
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