Okay, so you received a cease and desist letter, huh? Well, first thing’s first. Don’t panic! A cease and desist letter does not automatically mean that you’re being sued, or that a lawsuit is pending. It is merely a clear warning that you have been partaking in illegal actions and it further informs you that if you do not stop that behavior, further consequences may follow. Typically, if you receive a cease and desist letter, it means that you have infringed upon the rights and properties of someone else. Some ways that you may have violated the intellectual property of others would be to:
On the other hand, if you feel someone else is doing these things against you, the first step you should take to begin addressing the issue is to send a cease and desist letter. The letter puts the person or company that is violating your rights on notice that they have engaged in illegal and unsanctioned use of property. It advises them to stop doing so immediately, otherwise further action will take place. Essentially, a cease and desist letter is a formal letter warning someone to stop their illegal activity.
The primary difference between a cease and desist letter and a cease and desist order is legality and authority. Letters have virtually no legal standing or backing. Order, however, most certainly do. This is because a cease and desist order is granted by a court, not an individual. It functions much like a temporary injunction. The party that gets the order must stop whatever it is that they are doing until a trial is held, at which point, a permanent injunction may get ordered. Libel and defamation are two of the most common reason why you would want to request a cease and desist order from a court of law. Libel is when you are attacked in print. Defamation is when you and your reputation are attacked verbally.
There are many situations that may lead someone to issue a cease and desist, including:
Lastly, you should be aware that a cease and desist can be used to stop contributory infringement. This is when a person knowingly contributes to infringement, but does not actively participate in it. It’s also referred to as contributory liability or secondary liability.
As previously mentioned, the three major ways of protecting your intellectual property are to register trademarks, copyrights, and patents. Trademarks and copyrights usually come into effect the moment you create a work, or when you begin to use a specific phrase or brand in association with your professional work. It is entirely optional to file official paperwork to get them recognized by the government, however, it is worth doing so because they get far more protection when they are registered. Patents, on the other hand, must be registered for protection and the process for their registration is much more convoluted. It calls for protection for inventions, physical creations, and their processes.
You’ll want to send a cease and desist notice if you want to formally warn someone to stop doing something. This includes utilizing your property, harassing you, or illegally using your content. It also serves the important role of being a step to begin further legal processes, should the need arise. Another compelling reason to send a cease and desist is that it’s a lot quicker than formal legal proceedings; oftentimes, it can stop the problematic actions and behaviors without needing to go through the long and costly process of trial.
To start, make sure you are clear in what it is you want to stop and include as many details of the violation as possible when sending a cease and desist letter. You’ll want to include:
If the cease and desist is regarding copyright, trademark, or patent infringement, include details about:
Technically, a cease and desist letter has no legal backing or authority behind it; for all intensive purposes, it is merely a letter requesting that someone stop doing something. However, it does serve an important function in the legal process. This is because it establishes that you have made the offender aware of their violation and have tried to get them to stop, which is crucial because they no longer can claim to be unaware of the violation. Effectively, a cease and desist letter places an informal injunction on the actions of whoever is in violation of your rights, to which they can then choose to:
In the event that the letter is legitimate but gets challenged, the next step is a formal hearing to review the validity of the claims and the demands in the letter. A judge will say whether the defendant needs to stop their actions and behavior. After that, failing to comply is punishable by law.
The catch with all of this is that sending out a cease and desist letter can backfire on the sender in some situations. For instance, if there are threats in the letter, then that can be seen as extortion, blackmail, and other crimes. Additionally, if the violations and accusations turn out to be untrue, then the party who received the letter can counter-sue for judgement and damages. They can do so by declaring that there is no violation and treat the cease and desist letter as its own defamation attempt. So, basically, just be very careful with what you are saying in your letter.
It’s worth mentioning that you can file a civil suit without ever having to write up and send a cease and desist letter. In other words, a cease and desist letter is not a prerequisite to suing someone. However, there are some key advantages to sending the letter as it can begin negotiations to settle the issue without a drawn out court battle. Also, most importantly, it puts the violator on notice. This makes it hard very for them to claim ignorance should the situation escalate to a lawsuit. It’s more difficult to sue someone for something if they were never made aware that what they were doing was illegal. By sending the letter and requiring signature upon delivery, you can at the very least demonstrate that you made attempts to reach out and inform the violator that they are infringing upon your rights.
When you get a cease and desist letter, you do still have several options, including:
Regardless of what you end up doing, here are some essential pieces of advice if you have received a cease and desist letter:
You don't necessarily need a lawyer to write a cease and desist letter for you. You can write it yourself, since these letters aren’t legal orders. However, don’t ever send a threatening letter as that can harm your case and seek legal counsel if you have any doubts.
If you received a cease and desist order you do need an intellectual property lawyer because a cease and desist order is the first step in a lawsuit. Thus, a court of law must grant an order and there is no one better equipped to handle that process than a lawyer.
You will need to hire a lawyer when dealing with cease and desist orders because lawsuits are incredibly complex and you probably don’t know all of the ins and outs that are associated with intellectual property and civil law. This is where an attorney is invaluable because they can pen an effective cease and desist letter as well as advising you about your claim. In short, having a good lawyer on your side greatly increases your odds of succeeding.
At KAASS LAW, we understand the importance of smart legal advice and action. Often, one can take steps preemptively to ensure their rights are not being infringed or violated. However, in the event that it does happen, we are always there to guide our clients. We know how to write an effective letter that will achieve its purpose, and we also know how to help our clients who have been presented with a cease and desist letter as well. If you need help getting someone to stop using your property, to stop harassing you, or to respond effectively to a letter, we invite you to give us a toll free call at (310) 943-1171 to speak to our experienced civil and intellectual property lawyers today.
A business’s intellectual property has the potential to be its most important asset, granting it a huge competitive edge over competitors across industries. This is because intellectual property is uniquely created by creativity and innovation and it ought to be protected as such.
Intellectual property rights can be broadly grouped into four categories which are trademarks, copyrights, patents, and trade secrets. As an initial gesture of protection, a business should protect its intellectual property rights by registering a trademark or filing for a patent application. These are examples of the first, but by no means last, steps involved in protecting a business’s valuable and intangible assets.
Once registered, a business should remain aware and continue to monitor its intellectual property in order to identify and put a stop to infringement and unfair use. In fact, taking the time to review both proactive and protective measures is essential to securing your intellectual property; it’s best to think of this time spent as a crucial investment to ensure your company’s competitive standing and financial success. A common misconception is that once intellectual property rights and protections are granted, no one will dare to infringe upon your work. The reality couldn’t be any more different. Nobody is going to look for copyright violations or trademark infringement on your behalf: it’s always up to you to actively protect your work. Trademarks, copyrights, and patents merely make it so that in the event of a lawsuit, you will have a far more compelling case on your side since the government acknowledged your intellectual property.
While registering your work isn’t a guarantee of protection, it is still the best thing to do first and foremost. To review, the protections and benefits granted by each type of registration are:
You will want to ensure you maintain your protective measures, too. This means taking the time to do some basic upkeep, such as documenting your first use to make it easier to defend in court, should the need arise, and renewing your trademarks on time, using them continuously and filing any paperwork needed to document its use. Bear in mind also that if you choose to begin marketing or otherwise disclose your invention publicly before filing for patent protection, remember that you have to file your patent application within one year of disclosure and you must be the first to file, or you will lose the right to protection. For this reason, you may wish to consider starting with a provisional patent application to protect your rights.
If you intend on marketing your invention, product, or design in other countries, then you may want to look into registering your intellectual property in those countries, as well. This will ensure maximum protection and profit for your company. Fortunately, the U.S. has several treaties and conventions which make it easier for U.S. citizens and businesses to register patents and trademarks in multiple countries with one application. You’ll still have to follow each country’s law, though. For instance:
Many foreign countries also have agreements with the United States to recognize your copyright registration automatically. Check to see if the countries you’re interested in have this type of agreement, and if they do not, look into what the requirements are for you to register.
Oftentimes, the best way of protecting your intellectual property is simply by keeping quiet about it. This is especially the case if your work isn’t patentable or if you plan to protect it by using the trade secrets law. In those cases, you definitely want to limit the amount of people you tell about it. Whenever possible, get your partners and investors to sign off on non-disclosure agreements and make sure to specify in those agreements what exactly must be kept confidential and for how long. As another measure, you might want to still keep quiet about your idea even after filing a patent application since in most cases protection only begins once the United States Patents and Trademark Office actually grants your patent.
All of the laws and registrations we discussed offer you legal avenues for remedies after your work has been infringed or used illegally, but they do not actually prevent your work from being stolen in the first place. This is because some people may not be aware of the law and others just may not care. Sometimes, even a thorough patent or trademark search misses something. As such, it is your job to keep an eye on your industry trends and developments. In particular, you will want to keep a close eye on your industry developments:
When Push Comes to Shove...Pushback! At the worst case scenario, you would locate instances of actual infringement and it is at this point that you must stand up for yourself by taking action. What you ought to do in each case will vary, contingent upon a few circumstances, like:
In these types of strenuous situations, experienced intellectual property lawyers can make all the difference. At KAASS LAW, we have helped many clients manage and defend their patents, trademarks, and copyrights. We believe in the spirit of innovation and originality and we go out of our way to protect our clients’ work and property. We can help you to evaluate and determine which protections are best for your case as well as deciding upon which avenues to take to uphold and defend your rights. We invite you to give us a toll free call at (310) 943-1171 to speak to our experienced Los Angeles intellectual property attorney today.
KAASS LAW, 815 E Colorado St #220, Glendale, CA 91205, (310) 943-1171