Commercial cease and desists

What does cease and desist mean?

The term "cease and desist" is a legal expression commonly used when addressing conduct which is alleged to be unlawful or otherwise wrongful. It normally refers to a letter sent at an early stage of a dispute, or to a formal court order requiring someone to stop certain conduct. "Cease" simply means stop, while "desist" means not to repeat the unlawful activity in the future.   

What is a cease and desist letter?

A cease and desist letter is a specific type of letter which requires the recipient to stop the unlawful activity. Often these letters set out the legal action that may follow if the recipient does not cease and desist, which may include an application for an injunction.

Drafted effectively, the letter will serve as a serious warning. Before sending a cease and desist letter, you need to be very confident in the facts and your legal position. An inaccurate or poorly considered letter can undermine your position, particularly if the dispute subsequently develops into formal legal process.

We do not recommend that you embark upon drafting a cease and desist letter yourself.  If you end up starting court action, the correspondence leading up to the proceedings may be important, and a letter which contains factual or legal inaccuracies could damage your position.

When to use a cease and desist letter?

Our clients come to us from all industries and for a variety of reasons. A cease and desist letter will normally be sent before starting any court proceedings and, often, at an early stage after discovering the conduct in question.

The most common situations where a cease and desist letter is used for commercial disputes are:

• IP breaches, such as breach of copyright, passing off, unlawful use of trademarks or designs, or infringement relating to inventions.
• Issues arising with ex-employees relating to unlawful use or disclosure of confidential information, such as client lists, business -critical databases or know-how.
• Breach of confidentiality or breach of a non-disclosure agreement.

What to include in a cease and desist letter?

1. To make a cease and desist letter effective, you must clearly identify the conduct you are asking the recipient to stop. You should also explain the legal basis for your position and set out the action you may take, together with the consequences if your letter is ignored or the recipient fails to comply.
2. It is not unusual for a cease and desist letter to not only require unlawful activity to stop immediately but also require the recipient to comply with other demands. Setting a clear deadline for compliance is important.
3. Sometimes a cease and desist letter will also include a demand for a formal written undertaking not to repeat the unlawful activity and/or to return any documents, IP or data unlawfully taken. With claims which may involve unlicensed goods, a demand may be made for delivery up or destruction. It's common for a cease and desist letter to demand that the infringer :-

• formally admits to the unlawful activity.
• gives a clear undertaking in writing not to repeat the complained-of activity.
• provides appropriate undertakings to address the risk of further breaches.

Acting quickly can be critical to minimising damage to the business and financial loss. We work for clients who are both on the issuing and receiving end of a cease and desist letter.  Experience tells us that the best outcomes are where research has been done and facts are well presented.

Please do get in touch and we will explain further how we can help.