A Brief Introduction About the Agreement
What does cease mean? A cease and desist issued to an individual or an organization for preventing them from an illegal activity like using a trademark or patent, libel, or defamation. It could be in the form of a letter or an order. It is issued by an individual or an organization to an offending individual or person, but there are no legal implications to it. The individual is warned to stop the illegal behavior, for example, slander, or be sent a cease and desist letter for slander.
In the case of illegal activities relating to reproducing clothing without permission, a cease and desist for clothing is issued. The first step is to send this letter and then follow it up with a cease and desist order.
Who Takes the Cease and Desist Agreement? – People Involved
This is taken by an individual or organization when another individual or organization performs illegal activities like a trademark or copyright infringement, violates a non-competition agreement, or infringes a patent. The people involved are the affected party and the offender, where the affected party issues the letter or order.
Purpose of the Cease and Desist Agreement – Why Do You Need It?
The primary purpose of this letter is to warn an individual or institution from performing an illegal activity with immediate effect. This comes from cease and desist meaning. It is required when an individual or organization either defame another individual or organization, commits an infringement of patent or copyright rules, harasses someone for collection of a debt, or violates a clause in an agreement.
As a result of these illegal activities, there is a loss of reputation or an adverse financial impact due to the offense committed by the individual or organization.
What is a cease and desist letter? This letter is issued to stop any illegal activity immediately.
What is a cease and desist order? When the offender does not heed the letter, then a cease and desist order is issued, which has legal standing. It provides a temporary injunction, and the recipient must stop the activity immediately. A permanent injunction is later issued after the trial. A cease and desist letter is also alternatively called a cease and demand notice, cease and desist from, demand letter or cease and desist for harassment, cease and desist letter for harassment.
Contents of the Cease and Desist Agreement – Inclusions
Whether it is a letter or an order, includes the names of the affected party and the offending party. The definition of cease and desist describes these terms.
The agreement should also incorporate:
- Notice Period: The date within which the activity should be stopped has to be mentioned.
- Date of the order: The cease and desist order needs to have the relevant date on which it was issued
- Activity to be ceased: The order must contain a clear description of the action that is being ordered to cease with immediate effect. This could be character assassination, libel, slander, trademark infringement, patent infringement, violation of the non-competition agreement, harassment, or breach of contract.
- Specific demand: The order should include a specific demand that the activity be stopped
- Further legal action: The order must issue a formal warning that further legal action will be instituted if the offender does not heed the order and a particular time frame within which the instructions are to have complied.
- Information for a collection agency: Additional details if the order is being served to a collections agency include complete information about the debt being collected, the account number, and any documentation relating to the harassment.
- Copyright infringement: When this letter is being served for infringement of copyright, there should be details about the property, the details about the date and circumstances of the violation, proof of ownership of property, and penalties for future violation.
- Harassment: In this case, the date the harassment began needs to be mentioned, specific instances that have occurred, and the deadline for a response should be included.
How to Draft a Cease and Desist?
While drafting, it is important to keep the following points in mind:
- Parties to the Agreement: The names of both parties, the one issuing the letter or order and the individual or entity on whom it is being served
- Activity Details: The details of the activity or action that should be stopped with immediate effect, failing which further legal action to be taken. The activities which fall under a cease and desist comprise character assassination, libel, patent infringement, copyright infringement, violation of the non-competition agreement, harassment under the Fair Debt Collection Practices Act, and breach of contract.
- Notice Period: The time limit within which the action should be stopped is the notice period. The entity violating the activity needs to stop it before the expiry of the notice period.
- Documentary evidence: Details of the documentary evidence being provided with the letter as proof
- Additional requirements for patent infringement: Details of property, ownership proof, situations and dates of the violation, consequences of further violation in case of a patent or copyright infringement
- Harassment: Description of particular instances, the date the situation started and the date by which the offender must respond
- Collections Agency: When a collection agency is harassing you, then you should include the account number, details of the debt obligation, and supporting documents.
Negotiation Strategy
Before deciding on this, either a letter or an order, you should first determine whether the offending party is aware of the violation or infringement of patent or copyright. If it was not a conscious violation, then an amicable settlement can be arrived at without issuing a notice.
Benefits & Drawbacks of the Cease and Desist
Benefits :
- Immediate action for the offense: The offending party has to stop the illegal activity immediately, or else they will have to pay the required penalty. The procedure is sending a letter to the party who has committed the offense, warning them to stop the activity. If this does not work, then an order is sent.
- Rights of the affected party: The rights of the affected party are protected, and they will receive legitimate compensation for the financial or reputation loss suffered by them if they are able to support their claim with the proper documentation
Drawbacks:
- Legal standing: This order does not have any legal standing. The offending party may not pay any heed to the order, and then the affected party has to approach a court of law where the judge will decide if the defendant has committed malpractice. This will be a prolonged process and could take months to years to get a verdict
- Accuracy of facts: If there is any fact stated in the order which is found to be baseless or without substantial proof, then the entire order will be considered null and void.
What Happens in Case of Violation?
Before sending a cease and desist, the affected party must have concrete evidence admissible in a court of law regarding the violation, whether it be with regard to patents, harassment, or breach of contract. This is ceasing and desist order definition.
When this letter is sent by the affected party but ignored by the offending party, then the affected party has no option but to send an order. This is an important part of the legal action process as it proves that the offender was informed regarding their violation.
The recipient of the letter has the option to either stop the activity, challenge the legality of the letter or ignore it, and be prepared to face legal action.
This agreement will contain all the details about the nature of the violation, the duration within which the activity should be stopped, and the further penalties that the offender could face.
This order is a legal document and leads to a temporary injunction(1). The offending party is supposed to stop the activity until a trial is held. On completion of the trial, a permanent injunction is ordered. The offending party has to pay the penalty for the violation.
Whenever there is an infringement of a patent(2) or copyright, breach of contract, libel, defamation, or harassment by finance collection agencies, the aggrieved party has the right to cease and desist.
It is a warning to the offending party that the activity needs to be immediately stopped failing, which more serious legal action will follow. A cease and desist letter for defamation or cease and desist letter for debt collection are issued as the case may be.