A Cease and Desist Letter is a letter sent by an individual or a party to another individual or a party informing them that they are involved in infringing or harassing activities and should stop immediately. The letter serves as a warning to the offending party. Usually, it gives them a time frame to stop the activities before legal action, mostly filing an injunction, is taken against them.
In the phrase cease and desist letter, cease means to completely halt from doing certain things, while desisting means to avoid or abstain from doing those things anymore. So that means “Cease and Desist” is an official way of informing an individual or particular party to stop engaging in certain activities and never indulge in those activities ever again.
The letter must include the basis of the complaint and the options that the offended party offers in a bid to solve the problem. The recipient of the letter is also expected to respond to the letter by either accepting or refusing the complaints within a certain time span. If no change is observed in response to the letter by the offending party, then the offended party can file a lawsuit against them.
Since this is an official notice, the offended party is best advised to send it through certified mail to have a return receipt as proof that the recipient has been sent the letter.
The most common situations that lead to a cease and desist letter are bullying, harassment and stalking. However, there are also other situations when one may choose to send this letter. These include:
- Defaming or slandering their name (and any other form of character assassination)
- Collecting debt money with lots of nuisance
- Intimidation and harassment
- Infringement of copyright, this may include, content plagiarism
- Violation of a trademark, such as stealing one’s logo or brand details
- Privacy invasion
- Encroachment of private property
- Non-Disclosure Agreement violation
- Non-Compete Agreement breach
Fair Debt Collection Practices Act (FDCPA) applicability/guidelines
The times when a cease and desist letter is appropriate to have been mentioned above. However, when it comes to debt collection, there is more involved. Debt collectors can be improper in their communication, and that is why, apart from the cease and desist letter, the FDCPA was created to deal with obnoxious debt collectors.
The Fair Debt Collection Practices Act (FDCPA) is meant to:
- Provide instructions on how a party is allowed to collect their debts without the use of abusive and misleading language
- Enable an individual to inhibit any more harassing communications from debt collectors and allow them to even sue these debt collectors if fail to change
Downside to sending a Cease and Desist
Even though sending a cease and desist letter to a debt collector based on the FDCPA is beneficial, it also has its downside.
- The debt does not disappear
- An adverse relationship is created between the offended party and the creditor
- The offended party might face court cases and law suits filed by the debt collector for failure to pay the debt
- The offended party might have to deal with a new debt collector since their debt might be sold to a different creditor
- The offended party might have to use an enforced way, by the court, to pay the debt
When it comes to intellectual property, the downside of using a cease and desist letter includes:
- Triggering a declaratory judgment action by the offending party, which will prevent any further lawsuits and damages
A ‘cease and desist letter’ is also known as:
- Demand letter
- Cease and desist notice
- Stop harassment letter
Types of Cease and Desist Letters
Based on the situations when a cease and desist letter is sent, that means that there are different types of this letter. Types of cease and desist letters include:
Breach of Contract
This type of cease and desist letter is prepared and sent to a party that does not adhere to the rules of an agreement or contract.
This is a letter that warns an individual or a party to stop using copyrighted work that they have copied, stolen, or imitated. This cease and desist letter is served since that entity lacks the proper authority to use the material or has failed to give proper credit to the owner of the material.
Debt Collector (Creditor)
In this case, an individual send this letter to a debt collector, creditor or debt collection agency that has become a nuisance in their bid to collect their debt. Excessive calls can be a good reason to prepare this type of cease and desist letter to help bring any forms of communication to a stop.
This letter is targeted at an entity that is practicing slander or libel against another individual, party or business. For this type, the entity will be forced to stop making such claims and any other false statements or risk dealing with a lawsuit from the affected party.
In the case of any form of harassment, this cease and desist letter is the right approach to the offending party to stop those activities. Whether it is sexual harassment, unwanted treatment, personal harassment, emotional abuse or even threats, this letter acts as a warning to the offending entity before more serious legal steps are taken.
This type of letter targets to protect proprietary information of any kind that has been accessed and is being used without proper permission from the owner of the material.
Non-Disclosure (NDA) Violation Cease and Desist
For this type of letter, it is served to a party that has violated the conditions of an NDA to prevent any further contract violation.
Response to Cease and Desist
This type of cease and desist letter is used by an individual or party that has received a cease and desist letter to respond to the complaints stated in the letter they received.
This letter applies to a party that has infringed a trademark in form of stealing the logo or brand information of another entity. This type of cease and desist letter offers to warn against using the trademark since it tends to confuse the affected party.
Letter vs. Order
There is a difference between a cease and desist letter and a cease and desist order. Here are some of the differences between the two:
- While a cease and desist letter can be written by anyone whose right are being violated, an order must be written by the court or a government agency since it is an ‘injunction.’
- A cease and desist letter asks the offending party to stop the harassing and infringing activities but an order expects and requires the offending party to stop those activities.
- For the case of a cease and desist letter, the offending party replies to the offended party unlike an order where the offending party respond to the court or government agency.
- For the cease and desist letter, the offending party or recipient of the letter can still continue with the prohibited activities after issuance unlike the order where they cannot do so after an issuance.
How it Works
To have the best and most effective cease and desist letter, one must write it in a serious tone. This way, the recipient is aware of the gravity of the information in the letter and the need to stop and change their activities.
There are three ways that offended party may choose to write a cease and desist letter:
- The individual can write the letter on their own
- The individual can prepare the letter and ask their attorney to sign it
- The individual can request their attorney to assist them in crafting the letter
Here is how a cease and desist letter works when it comes to writing or preparing it.
Write the letter and send
Mentioned below is some of the most crucial information that one should include in the letter:
Recipient’s information- This includes details of either the individual, party or even business entity that needs to stop the infringing or harassing activities.
Sender’s information- These details belong to the sender or offended party that is requesting the recipient of the letter to stop the unlawful actions.
Unlawful behavior- Here, the sender should describe the unlawful actions of the offending party and also offer examples of the same. This makes the most essential part of the letter and so the sender must include clear and proper evidence to support their claims.
Some examples include:
- If the offending party is involved in harassment, mention the activities such as video clips of the behavior, recorded audio messages and even text messages would be a wise idea.
- When it comes to intellectual property, it would be wise to indicate where the material or property is being used without permission.
- For trademark infringement, mention where the trademark property, like logos and brands, is being used without authorization
- Legal action- For this part of the information required in the cease and desist letter, the sender should sound an intimidating warning about the possible lawsuit and court cases in case the recipient does not change or stop their behavior
- Date- This should indicate the date on which the letter was sent to the recipient.
While writing the letter, the offended party should indicate the timeframe that the recipient has to respond to the letter. There is not exact rule about the timeframe but as the sender, one should provide the recipient with a reasonable timeframe.
Remember, a reasonable timeframe depends on three things:
The delivery method used by the offended party
For instance, using the postal service to deliver the letter may result to a delayed response as compared to an email which will lead to a faster response. That means the response timeframe will differ.
The type of activity the offended party wants stopped
When it comes to the behavior or actions of the offending party, it all depends on the type. For instance, an individual using someone else’s logo in their advertisement may take time to take it down as they will have to consult the advertisement agency first.
The response delivery method used by the offending party
The method of delivery used by the offended party is most likely the same one the offended party will use to respond. That means, for postal services, the response will slower as compared to an email.
When it comes to delivering the cease and desist letter, the best delivery method that a sender can choose is using the USPS certified mail with a return receipt. This way, the sender is sure that the recipient got the letter since there is a signature to prove that. This proof could also be useful in court in case the situation worsens. This method of delivery costs about four dollars.
Also, the sender can choose to deliver the cease and desist letter by sending it online. This is done by uploading the cease and desist letter and then enter the destination details of the letter. The good thing about this delivery method is that the offended party can track the letter as it heads to the offending party or recipient. The sender is also sure that the recipient got the letter if they choose this method.
Note: If the sender is dealing with an individual, their official mailing address should be used. However, if the offended party deals with an establishment or a business entity, then the Registered Agent’s Office should be used as the mailing address.
Wait for a response
This usually takes about five to ten business days.
After using either one of the above-recommended delivery methods to send the cease and desist letter, the sender should now wait for a response from the offending party.
The sender should not take any further legal actions during the waiting period. However, the sender can ask around for legal counsel so as to be prepared for the outcome after the recipient gets the letter.
Reach a settlement
After the waiting period is over or even within the waiting period, the recipient may respond to the letter. If a response is gotten, it is best that the issue is handled out of court. It is not advisable for the sender to pursue legal actions if the offending party has agreed to change their behavior.
Keep in mind that lawsuits might be expensive and with their unpredictable verdict, might lead to unwanted decisions.
The recipient might choose to ignore the cease and desist letter or send a response that is not satisfactory to the sender. If this is the case, taking further legal actions is the best way to go. The sender can file for an injunction or cease and desist order to help stop the recipient’s unlawful behavior.
Since the offending party was already served with a notice, an “emergency motion” can be filed by the defendant to speed up the court process. After judgment has been made, a court hearing will be set to give both parties a chance to make their claims.
A cease and desist order plus a restraining order may be served to the offending party if their actions are found to be unlawful or even criminal. In most cases, the injunction is temporary to allow for the offending party to change their ways. If this does not happen, the court will make the injunction permanent.
Free Cease and Desist Letter Templates
How do I serve a cease and desist letter?
the offending party. As the offended party, using certified mail with a return receipt will provide proof that the recipient got the letter. With this proof, the offended party can gather evidence to sue the offending party in case they do not adhere to the instructions in the letter.
The cease and desist letter can also be served via email, through an attorney, or in person. It is also advisable to have a copy of the cease and desist letter after sending it to the offending party.