What is a cease and desist letter?
A cease and desist letter is an important, formal legal letter which is used to warn the recipient to stop engaging in specific activities that are infringing your legal rights. The desist aspect is to demand (with appropriate assurances) that there is no future repeat of the breach. The letter will also typically set out the consequences of failure to comply with demands in the letter.
When to consider
A cease and desist letter can be used in many types of dispute where the priority is to stop unlawful or potentially unlawful conduct quickly, without immediately issuing court proceedings. Common uses include:
Breach of contract – ongoing contractual breaches, breaches of exclusivity arrangements, acting outside agreed authority, continuing prohibited activity after termination or interfering with contractual rights.
Restrictive covenants – former employees, directors or business owners competing in breach of restrictions, approaching customers, soliciting staff or dealing with prohibited clients or suppliers.
Confidential information and trade secrets – taking or using customer lists, pricing information, business plans, databases, commercially sensitive documents or information obtained during employment, negotiations or a business relationship.
Director and shareholder disputes – diverting customers or business opportunities, competing with the company, misusing company information or assets, breaching shareholder restrictions or continuing to represent that someone has authority to act for the company.
Intellectual property and branding – trade mark or copyright infringement, passing off, copying website or marketing material, using a business name or logo without permission or creating confusingly similar branding.
Property and land – trespass, obstruction of access, interference with rights of way or easements, encroachment, nuisance or unauthorised use of land, premises or other property.
Commercial interference – inducing contractual breaches, improperly approaching another business's customers or suppliers, misusing information obtained during negotiations or tenders, falsely claiming a business association or continuing to use branding or commercial materials after a relationship has ended.
What to include in a cease and desist letter
A well-crafted cease and desist letter should clearly and accurately state:
The facts giving rise to the claim of unlawful activity.
Factually specific information such as the chronology of events and the dates when events are said to have occurred,including the forum of those events and to whom they were directed.
Specific actions the recipient must take – in addition to an undertaking to cease the unlawful action it is common to demand that materials be handed over or destroyed, such as counterfeit goods which are being passed off as the right holders brand or return of data unlawfully obtained and used.
If an undertaking is drafted, this must be done with careful consideration over the wording thereof and should include a penal notice. An undertaking is a serious document and the recipient must be warned to take independent legal advice before signing it or otherwise waive their right to do in writing to you, accepting not only the terms of undertaking but the consequences of a breach thereof.
Consequences of non-compliance - Informing the recipient of the potential consequences of non-compliance, including the initiation of legal proceedings or application for an injunction.
A deadline to respond by - set a reasonable time frame for the recipient to respond to the letter and to comply with your demands. This is usually 14 days and would be considered and reasonable by a Court. The letter should also state that if more time is required, then the recipient should respond in writing with a formal request for an extension of time and the reasons for such a request.
Common mistakes with cease and desist letters
These can include:
Sending out a letter before you are clear about the facts or your legal position - It’s important to remember the letter will almost certainly be an important document if your claim ever gets before a court.
Not having sufficient evidence of the infringement before sending the letter - Be certain of your facts and test the veracity of your evidence.
Making demands you do not follow through on - especially if you state you will apply for an injunction. If you do not do as you say you will probably lose credibility with the other party and potentially with the court if you still issue a legal claim.
Solicitors for a cease and desist letter
With such an important and potentially legally significant letter, it is highly advisable to get a cease and desist letter professionally drafted.
Our lawyers can draft a suitable letter for you at reasonable cost and can also advise on follow up legal action, where needed, including preparing for and applying for an injunction. We also advise clients who have received a cease and desist letter, and who need to decide whether to comply, in full or part, or respond with a legal letter of their own or pursue any other available and advisable response option.
