Part I. What landed on the desk · Chapter 4
I received a cease and desist letter. Do I have to stop?
A cease and desist letter tells you to stop doing something: using a name or logo, publishing a statement, contacting someone, employing a former employee in breach of a non-compete, or running a campaign. It is a private demand with no legal force of its own. Whether to stop depends on what it would cost you to stop, what it would cost you to be wrong, and whether the sender has the claim they say they have.
4.1What it is, and what it is not
A cease and desist letter is a demand letter whose primary demand is a change in conduct rather than a payment, though many ask for both. It usually identifies the conduct, states the right the sender claims, demands that you stop by a date, and often asks for a written undertaking and sometimes an accounting or payment. It has the legal force of any other letter, which is none, until a court is involved. Its real function is to put you on notice, which affects how your later conduct is judged, and to offer a way to resolve the matter without a filing.
4.2The common types
| Type | The claim | Usual source of law |
|---|---|---|
| Trademark | Your name, logo or product name is confusingly similar to theirs | Lanham Act and state law; see chapter 9 |
| Copyright | You are using their photo, text, design or code | Copyright Act; see chapter 8 |
| Defamation | A statement, review or post about them is false and damaging | State law |
| Non-compete or non-solicit | You hired their former employee, or a former employee of yours is soliciting their clients | Contract and state law; enforceability varies widely by state |
| Harassment or contact | Stop calling, emailing or visiting a person | State law, and the TCPA for marketing calls and texts |
| Debt collection conduct | Your collection practices are unlawful | FDCPA for third-party collectors; state law1 |
4.3How to judge it
- Does the sender have the right they claim? A trademark registration can be checked in the USPTO's public database. A copyright registration can be checked in the Copyright Office's records. A non-compete is a contract you can read. A defamation claim turns on whether the statement is false.
- Is the conduct what they say it is? Compare the two names, the two images, the actual statement.
- What does stopping cost? Removing one image: nothing. Renaming a business: a great deal.
- What does being wrong cost? Trademark and copyright cases can carry statutory damages and fee awards, which rise when infringement continues after notice.
Most letters are weaker than their tone. Some are exactly right. The four questions tell them apart.
4.4When stopping costs nothing, stop
If the thing complained of can be removed or paused at no real cost, do it the day the letter arrives, and say so in your reply, without conceding that you were obliged to. Taking down an image, pausing an ad, suppressing a phone number or changing a product listing removes the most expensive category of exposure, which is continued conduct after notice, and it costs you nothing in the argument about whether the conduct was ever unlawful. The reply can say "without admission, the material has been removed".
4.5When stopping is the whole business
A demand to abandon your trading name, your product or your key employee is not a day-one decision. Get advice before replying substantively; finding a lawyer, and what the first call should cover explains where to look under a deadline. A short holding reply, acknowledging receipt and saying you are taking advice and will respond by a date, is appropriate and keeps the matter at the letter stage. Do not sign any undertaking the letter encloses until a lawyer has read it; undertakings are contracts and are enforced as such.
4.6What a reply contains
The reference. What you have done, if anything, without admission. Where you dispute the claim, the reason, briefly, with any document that shows it: your own earlier use of the name, your licence, the contract clause, the true statement. What you propose. A request for more time if you need it. Keep the tone level; a reply that argues about the sender's motives rather than the facts goes nowhere. Chapter 12 has the structure.
Questions readers ask
Is a cease and desist letter a court order?
No. A court order is issued by a judge after a case is filed. A cease and desist is a letter from a private party or their lawyer. Ignoring a court order has immediate consequences; ignoring a letter has consequences only if the sender follows through.
Should I just comply to make it go away?
If stopping costs you little, often yes, and compliance can be done without admitting the claim. If stopping means abandoning your business name or a product, get advice before you do anything, because stopping can be read as conceding.
Can I be sued for ignoring it?
You can be sued whether you ignore it or not. What ignoring it does is remove any argument that you acted reasonably once on notice, which matters for damages in trademark and copyright cases.
What if the letter is wrong about the law?
Then say so in writing, with the reason, and keep the exchange. Being wrong is common: many cease and desist letters overstate the sender’s rights. A lawyer can tell you in an hour whether this one does.
Notes and sources
- Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq., which applies to third-party collectors of consumer debts rather than to most businesses collecting their own invoices.