Clients routinely throw out the possibility of sending a “Cease & desist” letter to their adversaries. However, this phrase is often misunderstood by clients and opponents alike. This blog article focuses on a proper understanding of cease & desist letters and what they accomplish. Let’s start with the basics.
What is a Cease & Desist Letter?
This is a legal demand typically generated by an attorney which instructs the receiving party to refrain from taking a specific action. Cease and desist Letters can be utilized in a variety of circumstances including the following:
- Cease & desist the use of a trademark or copyright which infringes or violates the intellectual property rights of a client.
- Cease & desist the violation of a non-competition clause. This typically comes us when an ex-employee goes to work for a competitor or starts his/her own business.
- Cease & desist the violation of an NDA – non-disclosure agreement. This arises when an ex-employee or other party discloses confidential information to a third party. Typically, the employee goes to work for a competitor and shares compensation or marketing information with is confidential in nature.
- Cease & desist harassing or defamatory communications – This arises when an individual engages in defamatory communications relating to a client or his/her business. The effect of these defamatory statements can be devastating and cause financial harm.
What Does a Cease & Desist Cannot Accomplish?
A cease & desist cannot compel a party to stop the complained of conduct but only threaten subsequent legal action should the bad acts continue. Unlike an injunction, it does not have the effect of a Court Order which mandates that a specific act be enjoined. However, the cease & desist does put the recipient and counsel on notice as to the legal consequences which would flow from continued violation. As an example, the use of a cease & desist regarding the unlawful infringement of a client’s trademark would put the violator on notice as to the legal rights of the trademark or copyright holder. Should the infringer violate the cease & desist, a claim for malice can be made which allows for the recovery of additional damages under Federal Law.
When should a Cease & Desist Not be Used?
Cease & Desist letters should be used sparingly only after a thorough legal review and determination that the recipient has violated specific state or federal laws. Never disseminate a cease & desist letter unless you are prepared to go the extra legal mile if the recipient fails to stop the bad act. That means your lawyer has identified the legal trajectory for non-compliance which is typically the filing of a lawsuit.
Should I send out my own Cease & desist letter?
I would highly recommend against sending out your own cease & desist letter. Rather, you should consult a cease & desist lawyer.
Without legal advice, an improper cease & desist letter might itself be viewed as harassing conduct by the recipient and invite legal action. Moreover, assuming the client is able to formulate a solid legal claim against the recipient, a poorly written cease & desist letter could undermine the claim or present contradictory evidence if the matter is ever litigated.
Get legal advice before sending out a cease & desist letter. This is particularly critical in the internet age when an electronic communication can be disseminated with a click of a button. That is not always a good idea.