Despite what many may think, cease and desist letters are technically not legal documents. They are simply a document that inform the receiving persons of a notice of a potential dispute, this is typically in the case of intellectual property.
It is important to remember that every state has its own laws and recognition of how cease and desist letters are handled, and how seriously they are considered.
Generally anyone can send a cease and desist letter, however, generally, they are often drafted by an attorney and used when the owner of a trademark, copyright, or patent believes that you are infringing on their intellectual property without authority.
An example of this could be if you were to start up an online shop selling jeans, and your logo was red and white, in this case ‘Levi’s’ could send you a cease and desist letter, as your store is very close to theirs and could count as an infringement on their copyright.
A cease and desist letter asks you to acknowledge this, and cease the perceived illegality and desist from engaging in future illegality.
You are not required by law in most places to respond or take requested action, although we recommend that you do, as there will likely be consequences if you do not heed the warning of a cease and desist.
Can you ignore a cease and desist letter?
While you technically could ignore a cease and desist letter, it is not recommended that you do so. Hoping that the issue will simply disappear will often end up causing plenty more problems.
This will usually result in your hearing from the sender again, potentially with formal legal proceedings. There will be deadlines for these formal legal proceedings, this will be set by the courts rules and regulations.
As well as this, certain legal expenses will be incurred in order to maintain your position.
If you try to resolve the issue before these legal proceedings start, then you will likely have more flexibility, and you will also have a much better chance of being able to control your costs.
It is simply better to reply to a cease and desist and take the desired action. If you do not, there is a chance that you may end up in front of a judge.
If you do, it is better to show that you responded quickly and with reason, instead of having to admit that you had simply ignored the complaint.
This would not look good on your and would result in the issue being very unlikely to resolve in your favor.
So, while it may be tempting to simply ignore a cease and desist, it is better for you and for everyone else, that you do not.
How do you get past a cease and desist?
A cease and desist letter must be crafted in such a way that does not violate professional conduct, even in the most extreme circumstances.
If a cease and desist is not conducted professionally then it may be penalized and this could cause even more problems.
If you received a cease and desist letter that was threatening or rude then the letter is unprofessional and this would raise issues with the attorney who filed this against you.
A cease and desist letter must contain charges related to the civil matter at hand. This includes criminal charges that are unrelated to the civil claim, in order to get an upper hand in the case.
This would be seen as a deceptive tactic and is widely frowned upon. This also applies to any malicious misrepresentation of a case, or making a false claim.
An attorney must also believe the civil claim and any associated criminal charges based on the validity of these actions in relation to the law.
If a claim is unfounded and without any merit, then this can expose the attorney to the possibility of a counterclaim on the part of the person who received the cease and desist, for embarrassment.
Lastly, an attorney must also not attempt to improperly influence the criminal proceedings.
This means they may try to influence the legal outcome following a cease and desist through illegitimate means such as fraud, bias, or duress. This would be found to be a tampering of the legal system.
If you receive a cease and desist letter and there is any sign of these actions in the letter then you may be able to make a counter-claim.
Is a cease and desist order enforceable?
Regardless of whether or not the cease and desist is temporary or permanent, a cease and desist order is legally binding.
These are often issued by a government agency or court of law, when it has been convinced that there is a reason to believe that an activity is illegal or potentially harmful, and this order is requiring the activity to stop.
Depending on the situation further action, possibility including a trial may be required.
There are differences between a cease and desist order and a cease and desist letter, in this regard. A cease and desist order is often issued by a government agency or court, and it requires the offender to stop the activity.
It will also require the offender to respond to a court or agency, also prohibiting the offender from legally continuing the activity.
On the other hand, a cease and desist letter can be written by anyone, but is typically written by an attorney. This type of cease and desist asks the offender to stop the activity and requests a response from said offender.
However, it does not prohibit the offender from continuing the activity but may subject them to potential legal action if they do not.
What are the grounds for cease and desist?
A cease and desist letter can be written for many purposes, and generally anyone can write one. However, a common cause for people to write a cease and desist letter, aside from copyright infringement, is harassment.
This is generally defined as unwanted, unwelcome and uninvited behavior, this behavior can annoy, threaten, alarm, intimidate, or even put a person in fear for their own safety.
This is considered to be an offensive behavior as it has intention to disturb, upset, or annoy the individual. This is, sadly, a very common cause for cease and desist letters.
There are many types of harassment, and therefore plenty of situations in which a cease and desist letter would be considered relevant and a wise course of action. These can include situations of bullying, stalking, including cyberstalking.
As well as, intimidation, any invasion of privacy, a breach of a contract, libel or slander, the infringement of copyright or a trademark, and finally property boundary encroachments.
A cease and desist letter is an ideal way to stop harassment, anyone can write a cease and desist letter, it is common for a person to hire an attorney to do this and turn it into a more legal matter, especially in the case of fearing for one's own safety.
What happens if you ignore a cease and desist?
If the cease and desist is an order, and you ignore it, you will likely end up having a lawsuit filed against you by the attorney who sent the cease and desist letter.
This is not something that may happen straight away, and you may think that you are out of the woods, however, this can be something that could happen a few years later, and you can still end up in legal trouble.
Depending on the severity, if you decide to ignore this cease and desist, it is possible that the opposing attorney could attempt to obtain a temporary restraining order, and ask a court to freeze your bank account, seize goods and shut down business.
If this happens, you will not receive a warning and by the time you are aware of this, it may be too late, even if you have hired a lawyer.
Ignoring a cease and desist letter of any type is a bad idea. Read it and make sure you are understanding what it says.
While not every cease and desist is a firm legal document, ignoring one can turn it into a legal matter in which you may end up having to spend an inordinate amount of money fighting.
It is not worth ignoring, it is simply best to read, understand and collaborate.