Here’s a fact: 90% of businesses are involved in some type of litigation. And, chances are, a portion of these at one point involved or mentioned a cease and desist letter. In general, a cease a desist letter is a formal letter (but it can also be an email) that instructs an individual or business to stop—or “cease and desist”—a specific action (i.e. using a copyrighted image without permission, slandering company via social media…) as soon as possible. Depending on the specific situation, this could be a precursor for a lawsuit or an opportunity to settle outside the courtroom.
For businesses—small and large—cease and desist letters are nothing new; here are 5 scenarios where you can expect to send (or receive) a cease and desist letter (and why you may need to conduct an Idaho secretary of state business search).
1. You Share the Same Business Name with Another Company
Say you conducted an Idaho secretary of state business search to see if your prospective business name was available. Seeing that it was, you registered it (along with the corresponding registration fees and documents) with the Idaho Secretary of State.
Now, after browsing on the Internet, you stumble upon a company website using the same business name. While in some situations this may be fine (i.e. if both companies have different target audiences, registered in different states, sell different products and/or services…), this company not only sells the same product but also appears to be advertising to the same target audience. In this case, it may be wise to consider drafting a cease and desist letter.
First off, know that this is not a black-and-white scenario and, with the advent and increasing use of the Internet, expect this scenario to be grayer. Double-check with your secretary of state to rule out if this company registered the business name before you. If that is the case, it may be you receiving the letter—certainly, this would not be grounds to send one.
2. Your Copyrighted Image Is Being Used Without Your Permission
After browsing the Internet, you realize that a website is using your image (that you created) without permission. Even though copyright material is protected as soon as it is created, according to Chron, you need to register it with the United States Copyright Office if you want to sue. That way, it is easier to prove copyright infringement.
Suppose you did register it, a cease and desist letter may be a reasonable response. It gives the receiver time to take the image down or contact you and ask for permission to use it. At the same time, should the receiver ignore the letter, you could have a stronger case if you do go to court.
3. Using Your Trademark Without Permission
You find a user using your company’s trademark on Twitter. Is this grounds to send a cease and desist letter? It depends. Trademarks include symbols, sounds, colors, words, or names that differentiate goods and services. (Take UPS’ trademark brown color, for instance.) Similar to business names, you need to register your trademark with the United States Patent and Trademark Office.
Of course, it is recommended to conduct a trademark search before submitting a registration application. If you have already done this, you may want to send a cease and desist letter. Still, know that a cease and desist letter does not prove that you have trademark rights; the social media account could choose to ignore it. In which case, it may be wise to speak with your attorney on next steps.
4. A Company Is Using Your Logo
Assuming you have registered your logo with the United States Patent and Trademark Office or United States Copyright Office, this is a form of intellectual property infringement. Other examples of intellectual property include (but is not limited to) slogans, written documents, artwork, logos, etc. That being said, you can submit a cease and desist letter.
At the end of the day, your logo makes up a key piece of your brand. For another company to use it puts your brand and reputation in jeopardy, as consumers may mix up this company and what it represents with yours.
5. It Gets Very Gray with Social Media
According to Business Insider, Fyre Festival sent out cease and desist letters to social media users who complained about it.
Supposedly, the cease and desist letters requested the social media users take down negative comments about Fyre Festival from social media platforms. Fyre Festival organizers received several class-action suits for this, among other reasons.
While there was more to the suits—such as promising attendees more than what could be delivered, as stated by plaintiffs (which was reported by Business Insider)— what this ordeal shows is that cease and desist letters are not a black-and-white matter.
Final Thoughts: To Send or Not to Send?
Cease and desist letters can be beneficial in a number of ways. For one, you can settle the issue outside of the courtroom, minus the hassle and extra costs. And, two, a cease and desist letter may strengthen your case if you do go to court. Nonetheless, this type of letter does not legitimize your stance as valid, nor does the receiver have to obey the instructions.
Also, know that in no way does this article replaces legal advice from a practicing and licensed attorney. We recommend that you seek an attorney if you are considering any type of legal action, cease and desist letters included. While legally a cease and desist letter can come from anyone, it will be taken more seriously if it is from an attorney.
Has your business received a cease and desist letter? Has your business submitted a cease and desist letter, and how was it handled? Leave a comment in the comment section below.