How to Use Cease and Desist Letters to Protect Your Rights

The Reasons for Using a Cease and Desist Letter

Cease and desist letters have become increasingly popular in recent years and cover a variety of areas for use. Most popularly, cease and desist letters may be used for cases of infringement and harassment. As a result, many have turned to legal self-help remedies such as cease and desist letters. Broadly speaking, a cease and desist letter is used to formally notify another of their unwanted activity and to stop said activity immediately. A cease and desist letter is essentially an unofficial notice requesting somebody to stop doing something, and can be extremely effective when used in the correct context. Having said that, a cease and desist letter is simply the opinion of one person who is asserting that some sort of harm is being done.

Therefore, while these letters are often used in intellectual property cases, contract disputes, and other business conflicts, they are also remarkably powerful in harassment cases and should be the first formal action taken when seeking to stop any harassing behavior. In this article we will discuss the idea of harassment and how a simple cease and desist letter can go a long way in thwarting off these offenders. Additionally, this article provides a how-to guide on writing, delivering, and enforcing cease and desist letters.

When to Write a Cease and Desist Letter

If you are the victim of any of the following types of actions, you should consider sending a cease and desist letter.

• Bullying
• Stalking
• Cyberstalking
• Intimidation
• Invasion of privacy
• Breach of contract
• Libel or slander
• Trademark or copyright infringement
• Property boundary encroachment

How to Write a Cease and Desist Letter

If, after reviewing your options, you believe a cease and desist letter will be effective in stopping unwanted activity, you must begin drafting a cease and desist letter. While we provide an excellent cease and desist letter template that is highly recommended, you should keep a few things in mind when completing it.

The elements of a cease and desist letter are rather simple:

• Include your name and address
• Include the recipient’s name and address
• Demand the recipient to stop the unauthorized activity
• Send it via certified mail, return receipt requested

However, in reality, the substance of the cease and desist letter should contain much more. Specifically, it is advisable to use direct and actionable language that not only puts the offender “on notice,” but also incites a certain level of fear of legal repercussions. For example, attorneys love using “Govern yourself accordingly” as the closing sentence, because it puts a proverbial exclamation point on your willingness to pursue both criminal and civil action with the courts if certain actions do not stop.

Additionally, it is helpful to make sure that all legal claims are backed up by relevant case law or statutes. This not only shows the recipient that you are serious about the matter, but also that your claims are not being pulled out of thin air. 

If after receiving the letter the recipient refuses your request and continues the behavior, there are additional remedies available which will be discussed later in this article. But before we do so, it is very important to keep in mind that one should not draft a letter that is too aggressive and certainly not one that is offensive. In short, there is a fine line to walk when constructing a cease and desist letter: it must be firm enough to get the offender’s attention while not being false or overly quarrelsome.

Delivering the Letter

As mentioned above, you should send the letter certified, return receipt via US mail. Additionally, you should send the letter as an email. By sending the letter certified the recipient has to sign for it. This not only forces the harasser to acknowledge the letter, but also adds an additional element of formality.

Taking Legal Action to Enforce the Letter

If the unauthorized activity continues, then the next step would be to take legal action. A cease and desist order is given by a judge to order a person to stop a certain act. Therefore, one must first petition the court and make a strong argument that the alleged offender’s actions are in fact illegal—either in a criminal or civil manner. If a determination is made by the court wherein the alleged offender’s behavior constitutes a strong likelihood of harassment, a cease and desist order will be served on the other party.

Upon the issuance of a cease and desist order, the offending party will be ordered to “cease” and “desist” certain actions until a hearing is held. This formal order is legally referred to as a “temporary injunction.” The temporary injunction will remain in place until a hearing is held to determine whether or not the order shall remain in place indefinitely.

More on Times When a Cease and Desist Letter Is Appropriate

As stated, cease and desist letters can be used to stop debt collection, defamation, intellectual property violations and more. 

The upside of sending debt collectors a cease and desist letter is that they will stop contacting you, and if a debt collector continues the communication, you may have standing to sue for a violation of the FDCPA, which could result in a monetary award due to damages resulting from lost wages, psychological distress, and emotional distress.

However, there is a downside to sending a cease and desist letter to a creditor. While it may stop all communication, and put you in a good position to sue if they do not stop, the debt will not go away, and in cases of large debt, ignorance is certainly not bliss. Therefore, it is a “keep your enemies close” scenario so you can keep a watchful eye on your debt and your creditors. Sending a cease and desist letter also creates an adversarial relationship, when oftentimes it is best to work directly with your creditors in an effort to amicably manage your debt.

Additionally, when you force a creditor to cease communications with you, the debt collector often either sells the debt to a different collector or pursues legal action to sue you in court to collect the debt. For this reason, sending a cease and desist letter may increase the chances that the debt collector will file suit against you to collect on the debt.

Moreover, if the creditor does file suit then you must defend it like any other claim to avoid defaulting, and thus automatically losing. If this becomes the case, the court will use the various tools available to enforce payment of the debt, including wage garnishment and an order to liquidate your assets. Therefore, before you send a cease and desist letter to your creditors, make sure that you are aware of all the possible repercussions that may result.

An intellectual property violation (or “infringement”) is a serious matter and unfortunately cannot be discussed in its entirety in this article. However, there are some basic tips and rules to follow when sending a cease and desist to a potential trademark infringer that are separate from a harassment or FDCPA cease and desist letter. Therefore, assuming you or your company has a valid claim to the mark by way of registration or common law, a cease and desist letter is a great place to start if there is indeed infringement occurring.

By sending a cease and desist to the offending party you are claiming the validity of your intellectual property and requesting immediate secession of their use of it. Upon receipt, an accused infringer may recognize its infringement or reply with an opposing opinion as to why they are not liable for any wrongdoing. In any case, you should include enough information to alert the opposing party of their violation.

In contrast, you should not provide every detail regarding your protected material. For example, you certainly do not want to provide information that would allow the other party to modify their material so as to avoid liability. Additionally, it is highly advisable that you send the cease and desist letter via certified mail in order to record the date on which you sent the letter and the date when the offending party received the letter. That way, you will have evidence that the other party failed to respond to your requests.

If it becomes apparent that the other party has received your cease and desist letter but they have not responded to it, you may have several options available to you.

• You can file a civil action claiming infringement and request an injunction, which would result in a demand from the court ordering the infringing party to stop using your protected materials.
• Additionally, if you have suffered damages as a result of the other party’s disobedience of your cease and desist, such as lost profits, you may be in a position to recover financial damages as well.

However, there are downsides to sending a cease and desist letter, as to cease and desist or not to cease and desist is often a complicated question. While cease and desist letters are widely used as cost-effective trademark enforcement mechanisms, there are many instances where sending that letter is not the best option for your business.

In a declaratory judgment lawsuit, the accused infringer requests the court for a formal decree that it is not infringing on the rights of the trademark owner. Without getting too technical, this is not good, mostly due to the fact they will likely file suit in their home state, thus gaining a “home field advantage.” Such a suit could also render a judgment that your intellectual property is not protected, when prior to this it was.

Therefore, in cases of trademark or copyright infringement, do not “jump the gun” and fire off a cease and desist. Rather, call or send a respectful letter detailing your rights and requesting the other party reconsider their use. In fact, there are even cases of businesses offering to pay for the design of a new logo and labels. However, if they force your hand by not responding or complying with your request, you can and should take the more aggressive step of sending a cease and desist letter.

What to Do If You Receive a Cease and Desist Letter

So, what happens if you receive a cease and desist letter? In short, relax and talk to an attorney. If nothing else, consult the information available on LegalNature, and thoroughly research the claims that are being made in the cease and desist letter.

Additionally, you should realize that a cease and desist is not legally binding, nor is it truly a legal document, so take a deep breath. This does not mean you should not take the letter seriously, because you should, but do not get so anxious that you let the letter consume your life.

Also, keep in mind a cease and desist letter is not a guarantee of a lawsuit. While it is likely the person writing the cease and desist letter will say they will pursue legal action, and they may even genuinely have plans to do so, getting a cease and desist letter does not mean you will definitely be sued. The truth is suing someone is extremely expensive, and most people (both plaintiff and defendant) would rather avoid it if possible.

If you do in fact decide to hire an attorney (which is highly recommended), do a little bit of homework, and read the letter thoroughly so you can get the right help. If you receive a cease and desist letter claiming harassment, don’t go to an Intellectual Property lawyer, and vice versa.

Additionally, prepare some factual information in order to better assist your attorney in defending your case—this also generally reduces their work, and results in a less expensive bill. For example, if the cease and desist letter concerns your unwanted and persistent contact with the claimant, detail all relevant communications including:

• text messages,
• emails, and
• conversations you can recall.

In sum, each occasion calls for a different choice of action. In doing so, always weigh the pros and cons of sending a cease and desist letter.

Create Your Cease and Desist Letter Now

Use our simple legal template to create your cease and desist letter in just minutes online right now.