What is a Cease & Desist Letter

What is a Cease & Desist Letter

You’ve pulled out all the creative stops and have a new illustrated mascot for your biz: Percy Porcupine. You’re thrilled that Percy now features proudly on your business branding. However, your initial excitement is suddenly quashed when you realise that a shady soul has been passing off your artwork as their own. After politely asking them to stop, the offender is being prickly and refuses.   

What should you do now? How do you get them to stop?  

It’s time to put on your big girl pants and protect your hard-earned intellectual property rights!  

 

What even is a Cease and Desist Letter (or a Letter of Demand)? 

Before you get all Judge Judy on the Percy Porcupine pilferer, your first step is usually to send a Cease and Desist Letter. A Cease and Desist Letter is also known as a Letter of Demand.   

A Cease and Desist Letter tells the infringer that you’re serious about protecting your intellectual property rights. This could be a copyrighted work, a trade mark (registered or unregistered) or another intellectual property right.   

So tell me, what does a Cease and Desist Letter need to cover?  

A Cease and Desist Letter sets out: 

  • what right they’ve infringed – like using your artwork on their website and passing it off as their own 
  • how their infringement is affecting your business – for example, members of the public (and prospective customers!) have started to associate Percy Porcupine with the infringer's questionable website 
  • how you need them to fix it and by when – most of the time, you’re going to want them to remove it or stop using it. You’ll need to give them a reasonable time to rectify, especially if they’ve spread Percy around like confetti  
  • what will happen if they don’t comply – this will be a carefully crafted statement about taking things further 

If you’re unsure exactly what intellectual property rights you have, take a squiz at our IP fact sheet. 

 

How will a Cease and Desist Letter help me?  

You really don’t want to have to raise your spiky quills and take things further if you can help it. Initiating and conducting formal legal proceedings can be long, drawn-out and downright expensive. A Cease and Desist Letter is an effective way to scare the bejabbers out of your infringer without taking things further. Case closed.

Do I have to send a Cease and Desist Letter, or can I go straight to court 

If you do want to go straight into formal legal proceedings, you don’t actually need to send a Cease and Desist Letter first. To start formal legal proceedings, you’ll need to engage a lawyer for further advice. 

 

Give me the nitty and gritty of what it needs to cover! 

The Sherlock Holmes-level investigation you conducted when you discovered the infringement will come in handy when it’s time to prepare your Cease and Desist Letter 

Some important things to cover will be: 

  • identifying your ownership of the work;  
  • describing the infringement in detail and identifying the relevant legislation, i.e. the Copyright Act 1968 (Cth) or Trade Marks Act 1995 (Cth)  
  • outlining the impact the infringement is having on you and/or your business  
  • providing instructions as to how to rectify the infringement 
  • providing a specific date and time by which they need to rectify the infringement 
  • giving them a heads up that you’ll initiate further proceedings without any notice if they don't stop infringing your copyright 

 

I’ve heard writing Cease and Desist Letters can be a bit tricky – what do I need to be careful of?  

Drafting a Cease and Desist Letter can be a bit tricky. Unfortunately, courts don’t take too kindly to baseless threats, even when they’re not made in bad faith. So you’ll need to be careful of the exact wording you use in your Cease and Desist Letter.  

It might be a good time for you to sit back and let us do the hard yards. We’ll stick to the facts and ensure everything’s legally legit. Get in touch with us here 

 

My letter is written and ready to send – what’s the best way to send it?  

When sending the Cease and Desist Letter to your infringer, surprisingly, snail mail is the best way to send it – specifically via registered post. This will help prevent our infringer from making up doozies about their dog eating the mail or the postie carding a failed delivery slip that’s spectacularly disappeared. You’ll know that it’s arrived, where it’s been delivered to, and when. 

What if our virtual vampire doesn’t have a physical address? Where snail mail isn’t practical, send it via email. Make sure you get a read receipt! 

 

When do I need to send my Cease and Desist Letter?  

Because there’s no legal requirement to send a Cease and Desist Letter, there’s no specific time by which it should be sent.  

But you’ve already given them a heads up, they’re still being prickly, and now it’s really starting to affect your business. Sending a Cease and Desist Letter sooner rather than later will show them you’re serious. It’ll also make sure that you don’t hit any roadblocks around delays in initiating legal proceedings.  

 

My infringer is being REALLY difficult and still refusing to cooperate…  

Life has been crazy, and the deadline to rectify the infringement has gone by in a jiffy. But nothing has changed – argh!    

It’s time to pour yourself a good wine and consider your options. In a nutshell, you could proceed to: 

  • mediation – an informal meeting between the parties with a neutral and objective third party. They’ll help the parties negotiate and guide a resolution 
  • negotiation – similar to mediation, but more formal, usually involving lawyers. When resolved, negotiations typically result in a signed written agreement between the parties 
  • legal proceedings – this could include an interim or permanent injunction to prevent the infringer from using your intellectual property and/or asking for compensation (for example, if they’re making money off your work or diverting your customers) 

We’ve laid out these options in more detail for you here. 

Don’t worry, your Cease and Desist Letter won’t have been sent in vain – it’ll likely form an important part of any future proceedings.  

 

A bit much? Let Foundd make things easier for you.  

It can be devastating when someone passes off your work as theirs – to which you’ve dedicated your time, effort and monthly wine subscription budget. A Cease and Desist Letter is an effective, cost-savvy, and unruffled way of protecting and enforcing your properly earned rights.  

To protect yourself from getting in a pickle when it comes to the content of your Cease and Desist Letter, don’t hesitate to give us a shout. We’ll be happy to help stop that Percy pilferer for good! 

 

Want to stay legally legit but don’t know where to start? Download our Business Startup Checklist and start your business like a pro! 

 

 

 

***Disclaimer. Please read!!*** 

This article is for general information purposes only and should be used solely as general guidance. It does not and is not intended to represent legal advice or other professional advice.  

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