What is a Cease and Desist Letter?
A Cease and Desist Letter is a letter that you or someone on your behalf (such as an attorney) sends to another person or business to demand that they stop using your intellectual property, or stop some other conduct. It is one of the first steps in the process of starting legal action against someone else for using your trademark or other intellectual property.
Cease and Desist Letters will generally include the following:
- A description of the activities that prompted you to send the letter
- Your contact information
- The time that the person or company receiving the letter will have to "cease and desist" before you take additional action
- Any supporting documents or other information to support your claim of copyright or trademark infringement
Generally, Cease and Desist Letters are sent by mail, but you can send them by email, fax, or any other method as well. Regardless of how you send the letter, be sure that you keep a copy for your records before you send it.
What if a Cease and Desist Letter does not work?
If the person or company does not stop whatever conduct is infringing on your rights, you may take further legal action.
You could consult a Rocket Lawyer On Call® attorney to talk about your options and specific rights. Generally, however, you can file a lawsuit for copyright or trademark infringement, and, as part of that lawsuit, you can request that the court order the defendant to stop using your intellectual property and pay you for any damages you've incurred.
You can also use a DMCA takedown notice if your property is being exploited or published online.
What is a DMCA takedown?
A DMCA takedown is a notice provided by the copyright owner to a person or business who is enabling the copyright infringement. This notice is used instead of filing a copyright infringement lawsuit.
The copyright owner will notify the internet service provider that hosts the site about the infringement. Then, the ISP will remove the content that you are complaining about. This quick action allows the ISP to avoid being sued for infringement.
A DMCA takedown will generally not work if the ISP is located in a country, such as China or Romania, with no copyright treaty agreement with the United States.
What rights are lost if a copyright or trademark is not registered?
Registering your copyright or trademark is not required. You still own your intellectual property the second you create it. However, you get additional legal rights if you register your copyright or trademark. If you do not register your intellectual property, you essentially waive those rights.
Perhaps the two biggest benefits for registering your intellectual property include:
- You can get attorney fees awarded as part of your lawsuit if you have to start formal legal action to protect your rights; and
- The monetary compensation that you may receive can increase when your intellectual property is registered.
In addition, when you register a trademark or copyright, you tell the country that you created the intellectual property you are claiming. It will be listed in search results when someone looks for similar names or products. It also provides a legal presumption that you own the intellectual property as of the date of registration.
What do I need to prove I own a trademark or copyrighted work?
The easiest way to prove that you own a trademark or copyrighted work is to register it. However, you can still prove that you own a trademark or copyrighted work even if you have not registered it. You can do this in a few ways:
- Using the trademark or copyrighted material in advertising.
- Acquiring customer or employee testimonies about use of the material.
- Creating plans, drawings, or other publications of the material.
The goal is to show that you were using the copyrighted or trademarked material before the other person or entity started using it. You must also show that it is the same or similar enough that a customer or potential client would be confused about the difference between the products or materials.
Keep in mind that an unregistered trademark or copyright generally will not affect individuals or entities outside of your state. Suppose another company is operating with the same name in Florida, but you are in California, for example. In that case, your unregistered trademark likely will not help you halt their use of your name. You only have that right with a registered trademark.
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This article contains general legal information and does not contain legal advice. Rocket Lawyer is not a law firm or a substitute for an attorney or law firm. The law is complex and changes often. For legal advice, please ask a lawyer.