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Originally Posted On: https://progressivelegal.com.au/dispute-resolution/cease-and-desist-letter/
Progressive Legal provides fixed-fee and affordable dispute resolution legal advice. We can help you with sending or responding to cease and desist letters. Find out more about cease and desist letters in the following article.
What is a cease and desist letter?
A cease and desist letter is sent to an individual and/or a company putting them on notice of some infringing conduct, demanding that they stop that conduct and don’t resume that conduct again in the future.
It may warn the recipient that if they don’t comply with the letter, that you may begin legal action against them. If the recipient complies with the demands in the letter, both parties may be able to avoid timely and costly legal proceedings.
We recommend obtaining legal advice before writing and sending a cease and desist letter.
Why send a cease and desist letter?
To start, it alerts the recipient of their conduct and the reasons for which you are demanding they stop their actions. The recipient may not even be aware of any breach or infringement before you draw their attention to it.
Secondly, a cease and desist letter formalises communication between you and the recipient that you require them to indefinitely stop some form of conduct.
Finally, a cease and desist letter puts the recipient on notice that if they do not stop the specified conduct in the letter, you may begin legal proceedings against them, which may include a claim for damages.
In what circumstances may I send a cease and desist letter?
1. Trade mark infringement
You may wish to use a cease and desist letter if you see someone using a mark, such as a word, phrase or symbol, that is similar or identical to a mark that you own. In this case, you can draw the recipient’s attention to your existing mark and demand that the recipient stops using their mark. If you have documented ownership of your rights to a trade mark, this will make it more easily enforceable. Find out more about our trade mark legal services here.
2. Copyright infringement
As opposed to what many believe, there is no 10% rule to prevent copyright infringement. The legal test is whether the offender is replicating a substantial part of the original work. If you have taken time to create original content and discover that someone is copying or imitating your work, you may wish to issue a cease and desist letter to stop the recipient from continuing their conduct.
3. Stop debt collectors
Dealing with debt collectors can be daunting and challenging. A cease and desist letter is frequently a highly effective tool that you can use to stop a debt collector from calling you and/or visiting your home. Your letter may make it clear to the debt collector that they may be liable for legal action against them if they continue to contact you. Once you’ve sent your letter, the recipient debt collector may only contact you one final time to inform you that they are complying with your letter.
You may wish to send a cease and desist letter if someone is harassing you in some way. Even if you have told the offender in person that you would like them to stop, a formal cease and desist letter is a written record of this, which may be important evidence in future legal proceedings. Your letter should include specific details of the ‘what, when, where and how’ of the offender’s behaviour and how it is threatening, offensive or annoying.
5. Stalking or invasion of privacy
Dealing with stalking and invasion of privacy can be difficult. If the offender is unstable or volatile, sending them a cease and desist letter may provoke them to pester you further. However, most of the time a cease and desist letter is an effective tool to demonstrate to the offender that you are serious about them leaving you alone. Most people will stop their conduct for fear of legal action against them. If not, your letter can be used as evidence against the offender in court.
You may decide to employ a cease and desist letter if an individual or company is making false statements that are damaging you and/or your business. This may include written or spoken false statements. Your letter may be important evidence in future legal proceedings. Therefore, your letter should stipulate specific details of what was said and how this has hurt you and/or your business, including reputation, character or professionalism. To comply with your letter, the offender must not only stop their false statements, but must also remove them from any written forums such as their website or social media page.
What to do if you receive a cease and desist letter?
You should take any receipt of a cease and desist letter seriously and you must act quickly. Failing to abide by the demands of the letter may result in legal proceedings being commenced against you which can be both timely and costly. It is important to note that just because you receive a cease and desist letter, this doesn’t mean that your conduct is actually in breach of or infringing anything. We recommend obtaining legal advice as soon as possible if you receive a cease and desist letter.
Contact us today if you require any assistance with sending a cease and desist letter, or if you’ve received one.
(c) Progressive Legal Pty Ltd – All legal rights reserved (2019)