A cease and desist letter in California is a first step toward resolving a dispute, but only a first step. Its purpose is to warn a person or organization to stop doing certain acts that step on your rights, often intellectual property rights. If the person or organization doesn't stop, you'll still have to go to court.
What Is a Cease and Desist Letter?
Do you believe that someone is infringing on your rights, such as on a copyright that you own? If so, you can send that person – or business – a cease and desist letter. It is notice that you believe they are infringing on your rights and you want them to stop.
Although cease and desist letters can be used as a warning against any unauthorized or harmful activity‚ they are most often used in the context of some infringement of an intellectual property right‚ namely‚ trademark infringement‚ copyright infringement or patent infringement,
Read More: The Proper Way to Serve a Cease & Desist Letter
What Are the Elements of a Cease and Desist Letter in California?
A cease and desist letter must include three critical components: 1) the fact that you own the rights or materials; 2) that the person or business is violating your rights; and 3) that they must take a specific action immediately. For example, you could demand that the person remove a photo from their website for which you hold the copyright. You can include additional instructions or demands, including a demand for payment to compensate you for the infringement. The letter might also contain a demand that the user attribute ownership to you in order to correct the violation.
Is a Cease and Desist Letter Proof of Ownership?
No, a cease and desist letter doesn't prove your claim in California. Nor does the letter prove that you have a legal right to be paid damages. Those are issues that must be settled by negotiation or in a civil lawsuit in a California court.
Do I Have to File a Cease and Desist Letter in Order to Sue?
No, sending a cease and desist letter is not a prerequisite to bringing a civil action in California. You can just go ahead and sue if you want to. But you may be able to work out an acceptable solution without going to court if you first send the letter because it opens the doors to a settlement of the dispute without the need for lawyers and court fees.
A cease and desist letter is also a useful strategy because it proves to the court that the user had notice that they violated your copyright rights. If you don't send one, and the user claims he had no idea that he was infringing on your rights, you may not get maximum damages. Once you send the letter, the user can no longer plead utter ignorance of the infringement.
Does a Cease and Desist Letter Have to Be Written by a Lawyer?
No, anyone can write a cease and desist letter in California. But remember that it is only the opening of a negotiation between you and the other party. If the other party doesn't believe you will go to court or doubts that you have legal assistance, they may not take your warning letter seriously. And it's doubtless a good idea to consult a lawyer before you accuse someone of breaking the law.
In California, anyone who believes that someone else is violating their rights can write a cease and desist letter, demanding that the person stop. Cease and desist letters usually give notice of some infringement of an intellectual property right‚ such as trademark infringement‚ copyright infringement or patent infringement.
Teo Spengler earned a JD from U.C. Berkeley Law School. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an MA and an MFA in English/writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.