Get the Facts from a Cease and Desist Attorney
Legal advice on the definition and interpretation of cease and desist letters. What to do, who should send one, and what to expect with a response.
What is a Cease and Desist Order?
A cease and desist order is a temporary injunction issued by an administrative agency demanding a party to stop certain practices. A cease and desist order is typically issued by a court.
Cease and desist orders are used in a variety of legal contexts, such as:
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Copyright infringement
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Trademark infringement
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Harassment
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Breach of contract
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Defamation
There are two categories of cease and desist orders:
- Summary cease and desist: This type of order is given before a hearing or without any form of court action.
- Final cease and desist: This is when an order becomes final. The individual served with a cease and desist order must request a hearing within a set time, or the order becomes final.
What Is a Cease and Desist Letter?
A cease and desist letter is a formal document demanding an individual or an organization stop performing or taking certain actions by a specific date. It is often the first step taken when an infringement occurs.
There is usually a threat of further legal action if the recipient fails to comply with the request by the designated date.
If a cease and desist letter is disregarded, the only option left is to sue the recipient. If the case goes to court, the cease and desist letter will prove that the recipient had been informed of the infringement and decided to disregard it.
At Mullen Law Firm, our defamation lawyers can help you draft yours cease and desist letter. Contact us at 201-252-7908 for a free consultation on your case.
Is a Cease and Desist Letter Required Before Suing?
You are not required to issue a cease and desist letter before filing a civil lawsuit against someone. Note that if you want to sue someone on your own, doing so without first speaking to a trusted internet lawyer can be risky if you aren’t fully aware of the laws and necessary legal processes.
If your claim is minor, you may be able to settle the matter without going to court. This option allows both parties to resolve their disagreement without high legal costs and court fees.
If the case goes to court, you will be expected to explain why you didn’t issue a cease and desist letter to resolve the matter in the first instance. You may even be awarded less compensation if the defendant can demonstrate that you did not inform them about the alleged infringement.
In contrast, you have a strong case against the defendant if you can prove that you have issued a cease and desist letter, yet the infringement continues.
Does a Cease and Desist Letter Have to Come From an Attorney?
Although you may submit a cease and desist letter on your own, civil claims can be complicated. Even if the court rules in your favor, the other party may file an appeal, prolonging the legal proceedings.
However, if you consult with a defamation attorney to draft a cease and desist letter on your behalf, they can help you by:
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Determining if your rights have been infringed and the legal remedies available to you.
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Determining if a cease and desist letter is the most effective legal action for you. Infringers of intellectual property rights frequently view cease and desist letters submitted by intellectual property owners as empty threats.
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Drafting and submitting a legally persuasive cease and desist letter on your behalf.
Key Considerations in Cease and Desist Cases
It is important to take some pre-requisite steps for the cease and desist case. It helps in legal implications, risk assessments, and protecting your rights and interests.
Assess the Validity of the Claim
Not all desist letter cease claims are valid or enforceable. It’s crucial to carefully analyze the basis of the claim, including any alleged facts and applicable laws, to determine its legitimacy. For such a letter sent from a court or government agency, you should seek legal advice from an experienced attorney. You can do this by reviewing the specific details of the alleged violation or infringement and understanding the relevant laws and regulations in your jurisdiction. However, keep in mind that it is not a court order. It is just a letter that is being sent in the context of some patent infringement.
Understand the Potential Consequences of Ignoring the Letter
If you are thinking of ignoring your cease and desist letter, you should think about the potential consequences of ignoring it, such as a potential counter lawsuit, fines, criminal charges, or any other, depending on the nature of the claim.
The letter typically serves as a warning and a call to immediate action, falling, which might lead to escalations, including court proceedings.
Legal Options After Receiving a Cease and Desist Letter
Receiving a cease and desist letter is not the end. You have various legal options, such as complying with the demands, negotiating with the other party, or disputing the claim. It’s important to consult with an attorney to understand the best course of action based on your specific situation and potential risks.
Is It Worth Hiring a Cease and Desist Attorney?
Civil disputes can be intricate, costly, and time-consuming. Even if you receive a favorable decision, the other party may file an appeal, further extending the legal process.
An attorney can provide advice on whether your legal rights have been infringed and, if so, whether you have sufficient grounds to pursue legal action. In addition, an attorney can also advise you on whether a cease and desist letter is the best line of action and draft a legally compelling letter on your behalf.
In most disputes, a cease and desist letter from an attorney is regarded more seriously than a letter from an unrepresented individual.
The range of cost varies, but it is typical to pay over $750 for a solo attorney to draft and submit yours cease and desist letter. If you have a strong case, an online defamation attorney may handle it on a contingency fee basis. That is, you only pay the attorney if they win a verdict or a settlement on your behalf.
Contact Mullen Law Firm at 201-252-7908 for a free consultation and to learn more!
Who Issues Cease and Desist Orders?
Cease and desist orders are issued by a court, but only in exceptional circumstances. They are similar to interim injunctions because a court has to make these orders before a case goes to trial. The orders demand relevant parties stop doing certain things until the court hears the case.
Before making a cease and desist order, the court has to evaluate the potential consequences of the order for both parties. After the trial, a judge may issue a permanent injunction to prevent someone from doing those things indefinitely.
For example, suppose an author is planning to publish a book but is currently prosecuted for a suspected copyright infringement. In this case, the court may impose a cease and desist order prohibiting the author from releasing the book until the trial is over. At the end of the trial, the court might issue a permanent injunction or enable the author to publish.
The court considers the following elements to determine whether a permanent injunction should be issued:
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The strength of the parties’ respective claims
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The harm to the person seeking the order if relief is denied, compared to the harm to the other party and the public if relief is granted
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Whether the person requesting the order can be compensated in monetary terms.
To learn more about cease and desist orders or online defamation, contact Mullen Law Firm at 201-252-7908 for a free consultation.