Cease And Desist Letters
CEASE AND DESIST LETTERS
This article discusses cease and desist letters against the use of intellectual property (especially involving trademark, copyright, and trade secrets), as well as cease and desist letters against alleged defamation. This article discusses what a cease and desist letters is, why someone may wish to send a cease and desist letter, and how to respond (or not respond) to a cease and desist letter.
At Lesowitz Gebelin LLP, we have helped numerous clients respond to cease and desist letters. Also, we have successfully used cease and desist letters to further our clients’ goals. We practice in the Los Angeles, California, area.
Please note that this article is limited to cease and desist letters sent on behalf of private individuals and companies, not governmental authorities.
What is a Cease and Desist Letter?
In defining what a cease and desist letter is, it is better to discuss what a cease and desist letter is not. Attorneys are not granted any special authority to write cease and desist letters. Attorneys are also not granted any special power to demand that people stop performing an activity. The term “cease and desist” does not have any special legal powers.
The main purpose for sending a cease and desist letter is to make the recipient of the letter believe that the demand is serious and that not complying will result in a lawsuit. Someone who receives a cease and desist letter from an attorney is likely to take the letter more seriously than if it came from a non-attorney.
The Benefits of Sending a Cease and Desist Letter
That said, there are times when a cease and desist letter will prove useful if there is future litigation. This usually will be where it could prove significant that the recipient received notice that his or her conduct constituted infringement or defamation and yet did not stop.
For most cases of trademark infringement, copyright infringement, and defamation not involving a matter of public interest, the defendant can be held liable even if he or she did not know that his or her conduct constituted infringement or defamation. However, proof that the defendant knew of the plaintiff’s assertion of rights, and yet ignored that assertion of rights, could be helpful in arguing for a higher monetary award, or in the case of trademark infringement, the court awarding attorneys’ fees. Green v. Fornario, 486 F.3d 100, 104 (3rd Cir. 2007) (“A defendant’s refusal to comply with cease and desist letters in bad faith is no doubt a legitimate means of establishing an ‘exceptional’ case” warranting the award of attorneys’ fees in a case brought under the Lanham Act.); Hounddog Productions, L.L.C. v. Empire Film Group, Inc., 826 F.Supp.2d 619, 632 (S.D.N.Y. 2011) (finding willful copyright infringement and awarding $150,000 in statutory damages in part because of continued infringement after the receipt of a cease and desist letter); Municipal Credit Union v. Queens Auto Mall, Inc., 126 F.Supp.3d 290, 296 (E.D.N.Y. 2015) (finding that continued trademark infringement after receiving multiple cease and desist letters helped to justify a heightened statutory damages cap).
For trade secret misappropriation and defamation involving a matter of public interest, the plaintiff must prove that the defendant acted with some type of knowledge of wrongdoing or, depending on the facts of the case, had a certain level of recklessness or disregard for the truth. If a defendant ignored a cease and desist letter and continued to spread defamation or use or disclose trade secrets, this could be evidence that the post-letter misappropriation or defamation was done knowingly or recklessly. PMC, Inc. v. Kadisha, 78 Cal.App.4th 1368 (2000) (continued use of trade secrets after corporate officers received a cease and desist letter could help provide basis for personal liability against the corporate officers).
Responding to a Cease and Desist Letter
If you receive a cease and desist letter, it is important to take it seriously and to act carefully. The letter could very well be making a frivolous demand. The letter could be a bluff, and the sender might not file a lawsuit if you ignore the letter.
On the other hand, the letter could be serious. As discussed above, if the letter alerts you that something you are doing indeed violates someone else’s rights, disregarding the letter and not changing your behavior could lead to negative consequences in subsequent litigation.
Attorneys will usually demand some type of response by a certain date from the recipient of the cease and desist letter. These deadlines generally do not have any legal significance. The deadline is generally placed in the letter to cause the recipient to become alarmed and act quickly. Generally, it is best not to feel pressured to act before contacting an attorney because of a short deadline placed in a letter. If the recipient writes back and says that he or she is seeking the advice of an attorney who will respond within a reasonable time, if the sender of the letter files suit immediately, a court is unlikely to consider the request to seek an attorney as continuing wrongful activity in spite of notice of wrongdoing.
Attorneys may demand that the recipient of the letter sign an agreement not to perform certain activity in the future. These agreements are often ridiculously one-sided. It is usually a good idea to consult with a lawyer before signing an agreement.
It is important to note that if you comply with a cease and desist letter, this generally does not prevent the sender of the lender from suing you for past acts of infringement or defamation unless you obtain a release of claims.
Please contact us if you wish to discuss responding to a cease and desist letter. You can email us at email@example.com or call us at 323-452-9909. We serve clients throughout California, including Los Angeles, Irvine and Orange County generally, San Bernardino, Riverside, Beverly Hills, Century City, Sherman Oaks, and Ventura County.