Over time, you might find occasion, as a business owner, to send a cease-and-desist letter to those you feel are depriving you of a certain right. It is not out of the question for you, at some point in time, to receive one yourself. You are aware that cease-and-desist letters are not indicators that everything is well, but what exactly is a cease-and-desist letter, and what legal power does it have? This blog will provide you with some general answers to these questions and more.
Cease-and-Desist Letter, Defined
Not to be confused with a cease-and-desist order, the definition of a cease-and-desist letter can, more or less, be inferred from the name alone. If you have received one, another party has informed you that they believe you are doing something to deprive them of one of their rights. The letter instructs you to cease performing the alleged violations and not restart them. Situations in which a cease-and-desist letter may be sent from one party to another include:
- A holder of registered intellectual property believing that another person or company is infringing or diluting their copyright or trademark
- Someone who believes a creditor is harassing them based on consumer protection laws like the Telephone Consumer Protection Act
- An individual publishing libel or slandering another person
- One party to a contract breaching a term (or terms) of the valid contract.
Does a Cease-and-Desist Letter Hold Any Legal Power?
The simple answer to this question is, “no.” As we alluded to before, a cease-and-desist order is separate and distinct from a cease-and-desist letter. The main difference between these two forms of C&D is that an order does hold legal power. A C&D letter, by itself, does not hold any legal power or officially start a legal proceeding (such as a lawsuit).
However, cease-and-desist letters have a reputation as a precursor to litigation; therefore, they should always be taken seriously. In the letter itself, the other party will usually identify itself, the behavior it wants you to cease, and the amount of time you will be given to respond. So, you can think of the content of a cease-and-desist letter as a quasi legal argument. Depending on your jurisdiction, a cease-and-desist letter might have various content requirements.
Should a Lawyer Get Involved after a Cease-and-Desist Letter is Received?
Yes. Even if an attorney acts as an advisor (if the dispute does not escalate to litigation), it is a good idea to retain counsel at this point. The letter could indicate that the other side is prepared to go to court. Whatever you do, ignoring a cease-and-desist letter is a bad idea. It could entitle the other side to a greater amount of damages, and you may have to pay penalties.
Trembly Law Firm would be honored to represent you and assist with resolving any business dispute, including sending or responding to cease-and-desist letters. Reach out to us here through our website to schedule a time to talk.