You Received a Cease and Desist Letter: Now What?
You open your mail or email and find a letter from an attorney. It says your business is infringing a trademark, violating a contract, using someone's copyrighted material without permission, or engaging in some other unlawful conduct. It demands that you stop immediately and threatens legal action if you do not.
Your stomach drops. You forward it to your business partner. Someone suggests ignoring it and hoping it goes away.
Do not do that.
A cease and desist letter is not a lawsuit. It is not a court filing. It has no immediate legal force on its own. But it is a serious legal communication that requires a serious response -- and how you handle the next 48 hours will significantly affect how the matter resolves.
Here is what to do.
Step One: Do Not Panic, Do Not Ignore It
The two worst responses to a cease and desist letter are panic and avoidance. Both lead to bad outcomes.
Panic leads to hasty responses -- apologetic admissions, offers to pay money you may not owe, or knee-jerk actions that damage your legal position. The person who fires off a reply saying "we are so sorry, we had no idea, we will stop immediately" has just admitted the conduct occurred and waived any argument about whether they had a right to engage in it.
Ignoring it is worse. A cease and desist letter is frequently the last step before litigation. If the sender's attorney does not receive a response, the next communication is often a complaint filed in court. By that point, you are in litigation you might have avoided with a well-handled response.
Read the letter. Set it aside for a few hours if you need to regulate your emotional reaction. Then deal with it methodically.
Step Two: Understand What Is Being Claimed
Before you can assess how to respond, you need to understand what the letter is actually saying. Read it carefully and identify:
Who sent it? Is it from an attorney, or directly from an individual or company? A letter from an attorney signals a more serious claimant -- one who has already invested in legal representation. A letter directly from an individual or business may indicate a less sophisticated claim.
What conduct is at issue? What specifically are you accused of doing? Trademark infringement? Copyright violation? Breach of contract? Defamation? The type of claim determines the legal analysis.
What is the demand? Most cease and desist letters demand: (1) that you stop the specific conduct, (2) that you confirm in writing that you have stopped, (3) sometimes that you destroy materials, pay damages, or provide an accounting of profits. Understand exactly what they want.
What is the deadline? Most letters give a response deadline -- often 10 to 14 business days. Note this and calendar it immediately.
What evidence do they have? Some letters attach evidence of the alleged infringement or violation. What do they know? What can they prove?
Step Three: Assess the Claim
Not all cease and desist letters have legal merit. Some are sent aggressively to intimidate competitors, to extract settlements from parties who will pay to make the problem go away, or based on a misunderstanding of the law. Others represent genuine legal claims that, if litigated, you would likely lose.
The key questions to ask:
Is the claim legally valid? Do they actually have a registered trademark on the term they claim you are infringing? Is the copyright they claim properly registered? Is the contract provision they cite actually in your agreement? Legal claims that look overwhelming in a letter sometimes evaporate on closer examination.
Are you actually doing what they allege? Sometimes cease and desist letters are sent based on incorrect information -- they misidentified your product, misread your website, or confused you with a different company.
Is your conduct actually unlawful? Even if you are doing what they allege, is it actually infringing, defamatory, or a breach? Fair use is a defense to copyright claims. Descriptive use and nominative fair use are defenses to some trademark claims. Review whether a legal defense applies to your situation.
What is the likely litigation risk? If this went to court, what would happen? A claim that has merit and would result in an injunction and significant damages is treated differently than a claim that would likely be dismissed.
You cannot fully answer these questions without a legal assessment of your specific situation. Which brings us to:
Step Four: Get an Attorney Involved
For any cease and desist letter from another party's attorney, involving your own attorney before responding is strongly advisable -- and for significant claims, it is essential.
Here is why: your response to a cease and desist letter can create legal liability, waive defenses, or establish admissions that haunt you in subsequent litigation. An attorney knows what to say, what not to say, and how to preserve your options.
This does not mean you need to spend $50,000 on litigation counsel immediately. For many cease and desist matters, a one-hour consultation to assess the claim and a few hours to draft a response is all that is required. Many employment and intellectual property attorneys will provide this assessment at a fixed fee.
When you contact an attorney, bring:
- The cease and desist letter itself
- Any attachments or exhibits
- A factual summary of what your business does that is related to the claim
- Any relevant contracts, registrations, or ownership records
- Your deadline for response
Responding to a Cease and Desist Letter
There are four general response postures, depending on your assessment of the claim:
Option 1: Comply
If the claim has clear merit -- you are genuinely using someone else's registered trademark, your website is using copyrighted images without permission, you are violating a non-compete -- compliance may be the right answer. Continuing infringing conduct after receiving formal notice strengthens the claimant's case and can increase damages. Stopping promptly, confirming it in writing, and moving on is often the least expensive resolution.
Compliance does not mean admitting liability. Your attorney can draft a response that confirms you have ceased the conduct without making unnecessary admissions.
Option 2: Dispute the claim
If the claim lacks merit -- their trademark is not registered, the copyright is not owned by them, your use is protected by fair use, or you are simply not doing what they allege -- you respond with a substantive refutation of the legal and factual basis for their claim.
A well-drafted dispute response accomplishes several things: it puts the claimant on notice that you intend to defend yourself, it documents your legal position, and it frequently ends the matter if the claimant's attorney reassesses the strength of their claim in light of your response.
Option 3: Negotiate
Many cease and desist matters resolve through negotiation rather than litigation or simple compliance. If you are using a mark that could create confusion but you have some legitimate basis for your use, a trademark coexistence agreement or limited license may resolve the matter. If a contract is genuinely ambiguous, a clarification agreement might work. Negotiated resolutions are usually faster and cheaper than litigation.
Option 4: No response (limited circumstances)
In rare situations -- particularly when the letter is clearly from an unsophisticated claimant with no attorney and a claim that has no legal basis -- a non-response may be appropriate. But this is the exception, not the rule. Run this choice by an attorney before defaulting to silence.
What Not to Do
Do not respond emotionally. The letter may be wrong, unfair, or sent in bad faith. Your response should be measured, professional, and legally sound -- not a venting of frustration.
Do not make admissions. "We had no idea this was a problem" is an admission that the conduct occurred. "We have always tried to respect intellectual property rights" is an implication that you may not have. Let your attorney draft or review the response.
Do not destroy evidence. If litigation is a possibility, destroying relevant documents, records, or communications after receiving a cease and desist can constitute spoliation of evidence -- a serious litigation problem that is separate from the underlying claim.
Do not post about it. Discussing the cease and desist letter publicly -- especially in ways that could be seen as disparaging the claimant -- creates defamation risk and looks bad if the matter proceeds to litigation.
Do not assume the worst. Many cease and desist letters are the opening move in a negotiation, not a prelude to inevitable litigation. How you respond shapes how the other side responds.
Common Types of Cease and Desist Letters and Their Dynamics
Trademark infringement: The most common type for small businesses. The claimant argues you are using a name, logo, or mark that is confusingly similar to theirs. Key questions: Is their mark actually registered? How similar are the marks? Are the goods or services competitive? Trademark claims are highly fact-specific.
Copyright infringement: You are using images, text, code, or other creative work owned by someone else. Key questions: Do they actually own the copyright? Is fair use a defense? What is the potential damage exposure? Statutory damages for willful copyright infringement can be significant ($150,000 per work infringed), which makes these letters worth taking seriously.
Non-compete or non-solicitation violation: A former employer claims you are violating a non-compete agreement. Key questions: Is the non-compete enforceable in your state (it is not in California)? Is it reasonable in scope? Are you actually violating it? These letters require immediate attorney involvement given the potential for injunctive relief.
Defamation: You have allegedly published false statements that harmed someone's reputation. Key questions: Was the statement true? (Truth is an absolute defense to defamation.) Was it an opinion rather than a statement of fact? Was it about a public figure (higher burden for the claimant)?
The Bottom Line
A cease and desist letter is serious but manageable. The right response -- prompt, legally sound, and appropriately calibrated to the merits of the claim -- resolves most of these matters without litigation.
The wrong responses -- ignoring it, panicking into immediate compliance without understanding the claim, or firing off an emotional reply -- create problems that a thoughtful first response would have avoided.
Read it carefully. Get counsel. Respond before the deadline.
Received a cease and desist letter? Talking Tree can help you understand what a cease and desist letter says and what it means for your business. For matters requiring a licensed attorney's response, Find Counsel connects you with experienced IP and business litigation attorneys.