Friday, May 30, 2008

Cease and Desist!

There is something about a letter on official lawyer letterhead with the ominous words "cease and desist" that can be very intimidating. "What did I do?", you wonder. "What are they going to do to me?"

A cease and desist letter can be very frightening, especially if it contains language about immediate litigation if you don't do exactly what is requested of you in the time period allotted. So what exactly is a cease and desist and what should you do if you receive one?

A cease and desist letter can take many forms from a fairly friendly reminder that you are using some intellectual property that doesn't belong to you to an outright threat of litigation if demands aren't met in a specific amount of time. Typically, a cease and desist letter falls somewhere in the middle and outlines who the person is who is writing, the interest of their client and what actions you have taken that has apparently infringed on their client's rights. The letter will also include some request for relief such as an outright halt of your allegedly infringing activities. It may also request information behind how you obtained the images (if it is copyright) or how long your alleged infringement has occurred.

The key to remember whenever receiving a cease and desist letter is to not panic. There are quite a few cease and desist letters that are sent that have absolutely no basis in fact (or in law). The best course is to first send the letter to your intellectual property counsel so they can determine what is being alleged. They should then ask for information from you to determine whether there is some factual or legal basis for the claim. Then, with your approval, they should prepare a formal response that addresses the allegations contained in the letter. Some times this could include agreeing to halt the infringing activity to avoid litigation.

Depending upon how thorough the response is and how unfounded the complaint was, you may not hear anything further from the other party. Of course, they may also find your response inadequate and proceed to file suit. Even if this happens, however, you have been given an idea of what they will argue and so it should not be as much of a shock if they actually file suit.

The ideal way to deal with a cease and desist letter is to review it, send it to counsel and make sure that counsel has enough information to make an accurate and thorough response. Good communication, even with someone who is threatening to sue you, is very important in heading off a lawsuit!
image: PearlsofJannah (through Creative Commons, some rights reserved)
All text © 2008, Hardy, Carey, Chautin & Balkin, LLP. All Rights Reserved.

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