When to Send a Cease and Desist Letter

 

Today on The Legalpreneur, I am guiding you through common practices to deal with copyright or trademark infringement. I review the difference between a cease and desist letter versus a demand letter. Before you send a cease and desist letter, I encourage you to evaluate the alternatives. As an attorney, my goal is to inform you of all your options so you can resolve your issue in a way that suits your individual needs.

It is important to understand that many people don’t realize they are infringing. So, If you are looking to resolve an issue in the most cost effective manner, it benefits you to personally reach out and educate a violator before paying an attorney to do so. More often, these issues can be resolved without getting the courts or an attorney involved. 

In instances, where you may need to be more forceful, The Legalpreneur membership is a great tool that allows you to involve an attorney early on. Most businesses don’t want to go to court, simply, having a Legalpreneur attorney on your side can help you resolve any issue efficiently and cost effectively. In this episode you will learn everything you need to know to make the right decision for you and your business. 

 

Key Takeaways:

[1:40] Consider your other options before sending a cease and desist letter

[2:30] The difference between a cease and desist verses a demand letter

[3:40] Personally reach out and educate before sending a cease and desist letter

[5:56] Requirements for a copyright takedown or a trademark takedown

[7:00] The DMCA relieves 3rd party hosts of liability for user’s individual infringements 

[8:10] As a last resort, you can submit a takedown without reaching an attorney 

[9:20] You must have the registration for a trademark takedown but not for copyright

[9:30] When you should reach out to an attorney to send a letter

[10:20] Legalpreneur membership allows you to CC our attorneys on all communication

[11:48] Demand letters are most effective for recovering nonpayments 

 

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Disclaimer: 

The Legalpreneur Podcast is advertising/marketing material. It is not legal advice. Please consult with your attorney on these topics. Copyright Legalpreneur Inc 2022

 

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Legalprenuer transcript:

Andrea Sager  00:03

Welcome to the Legalprenuer podcast. I’m your host Andrea Sager founder and CEO of Legalprenuer Inc. As a serial entrepreneur and someone that works exclusively with small business owners legally protecting their business. I’m dedicated to covering common legal issues faced by business owners, providing you with the business knowledge you need to catapult your business’s growth and showing you just how some of the world’s most elite entrepreneurs have handled these legal and business issues themselves. In true attorney fashion, the information in this episode is not legal advice. This is for informational purposes only. And you should always consult with your attorney before implementing any of the information in the show.

 

Andrea Sager  00:45

Hello there, welcome back to another episode of the Legalprenuer podcast. You guys, we’re just two days away from the official launch of Legalprenuer the business owners guide to legally protecting your business, the book that has been a labor of love. If you have not already pre ordered it, you can get on Amazon, Barnes and Noble. I am just so grateful for anybody that has pre ordered. But if you preorder, if you could even send it to a friend, oh my gosh, I would be forever ever, ever grateful. I just want this in so many hands. Because every entrepreneur, every business owner needs to read this book, the legal stuff we all know can be scary can be intimidating. But this book just lays it all out there for you puts it all in one place so you’re able to get your hands on it. Oh, you’re so lucky. Okay, today’s episode, when to send a cease and desist letter. Also, when to send a demand letter? Basically, when should you hire an attorney to send an official letter for you. Now I have covered in the past, you know, what’s a cease and desist letter versus a demand letter. Also, all this information is in the Legalprenuer book. But if you are in a situation where you think you may want an attorney to send a letter for you listen up like this episode is for you. Because when I am working with clients, you have to understand that who I’m working with is very, very small business owners, they have little to no legal budget. And so they’re just trying to make things work. So it is my job to make their budget go as far as possible. And so before sending a letter, I always ask the clients or counsel them coach them through other options. And that’s what this episode is going to be about as the options available to you before actually deciding to send a letter. Now, before any lawsuit happens, typically a letter or letters are sent to the other party. Very rarely does a lawsuit just happen without actually reaching out and trying to get the issue settled before filing a lawsuit. It just doesn’t happen because the courts want to see that both parties have made a good faith effort to settle the matter amongst themselves. Because the courts are backed up the courts don’t want you to be in court if you don’t need to be in court. So that’s why letters are so important. Now, really quickly, I will refresh your memory on a cease and desist versus a demand letter. Cease and desist is when you want somebody to stop doing something you want them to cease stop doing it and just not do it anymore at all. Typically, this comes up when somebody’s infringing copyright or trademark infringement, maybe slander, they’re talking badly about your business. There’s a ton of situations, but those are some of the most common for business owners that I work with. And then a demand letter is somebody hasn’t done something and you want them to do it, you’re demanding that they do something by a certain date, or else you will be taking further legal action. Now, both of these are very relevant situations to business owners, they happen all the time, if this comes up, it’s not the end of the world. And don’t think there’s anything wrong with you as a business owner, you just have to know how to handle it. So if this hasn’t happened to you yet, keep listening, because eventually it will, and you want to come back to this episode. So the options before actually sending a letter is reaching out yourself. You always want to reach out yourself. And so let’s take it from the infringement standpoint. And so you’re thinking about sending a cease and desist letter. If you find somebody that’s copied your content or they’re infringing on your trademark, you can simply reach out to them and educate them. And this is exactly what I tell my clients I say, Look, this might be a good education moment for them because they may have no idea. They may have no idea about this legal stuff, and they’re just trying to make a quick buck. Nothing that makes it okay, not that it makes all right. But instead of paying me several $100 to send them a letter, it might be worth it to reach out and say hey, not sure if you know this, but this is my copyright or this is my trademark. Can you please you know, stop using it that way I don’t have to get my attorney involved. Nine times out of 10

 

Andrea Sager  05:00

This works. But I will say you don’t have to do that. Like you do not have to do that. If money is an issue, though, you may want to go that route first. Because it can save you money and saving time and money as far as getting an attorney involved. But if you’re like, I’m too busy for that, I don’t care, whatever. Just want to get an attorney to do it for me. Absolutely. That is you’re right, this what I’m talking about here are other options to help you save money and just let you know the other options you have available to you. So you can absolutely reach out. So most of the times it goes very well. Most of the time, people are like oh shit, I had no idea. I’m so sorry. And they’ll change it right away. And it happens to everyone. I’m an attorney. This happens to me. I see other attorneys that are teaching on trademarks and copyrights and that are infringing on my trademarks and copyrights. And I just go about and I tell them hey, like,

 

Andrea Sager  05:53

not sure if you saw this, but we have this ship protected. I’m very nice about it, by the way, but It cracks me up because I’m like, how might you practice what you preach anyways, okay, so the next option are takedowns. And again, all of this is in the book, but takedowns this can be a copyright takedown, also known as a DMCA takedown or a trademark takedown. For copyrights. You don’t have to have a registration because you automatically own the copyright. For trademarks, though, you do have to have a federal trademark registration to submit a takedown online and takedowns are where you go to basically any third party platform and reach out to them and say, Hey, you are infringing on my content because somebody else has posted it on your website. Please take it down. Copyrights, you don’t have the registration trademarks, you do have to have a federal registration. This works for Amazon, Etsy, Facebook, Instagram, Shopify websites, WordPress, what, like any website, any third party platform. And the reason this works is because if they don’t abide by the takedown rules, they can also be sued for trademark and copyright infringement. So think about that if Facebook was responsible, for every time somebody infringed on somebody else’s trademark or copyright, they’d be drowning in lawsuits, which they may already be, but it’s how they can relieve themselves of liability. And the DMCA. It’s the Digital Millennium Copyright Act. It was enacted when the internet started getting popular, and there were blogs, third party websites hosting other people’s content. And the host was like we’re not posting this, but they are hosting it. So this was enacted to relieve them of liability if they abide by the takedown process. Now, the reason you may not want to resort to this is somebody whose entire livelihood could be taken away. I know on Etsy, they’re pretty strict with a three strike rule, if you have three strikes against you, then your account is completely suspended terminated. Facebook, Instagram, I’ve seen people that have you know, hundreds of 1000s of followers lose their accounts, because they were infringing on somebody’s trademark copyright. And this is also why you you need to be careful with infringement. But basically, you can submit a takedown without reaching out to them without getting an attorney involved, you can do this on your own. Some people don’t like to do that, because of course, they don’t want to take away somebody’s livelihood. But at the end of the day, sometimes it’s a last resort. So it is completely up to you which route you want to take, I’m simply giving you the options available to you. Now, if you are somebody that has a lot of content, a lot of copyrighted works, you may want to ensure that you’re always monitoring what you’ve created, and always having the infringing works taken down. We have different packages, mainly for content creators, photographers, designers. And basically, they’re always being ripped off. People are always reposting their content, which is copyright infringement. And so we will go and always have them taken down, we submit the takedowns for you. Like I said, you can do it yourself. But it gets to be very time consuming if it happens a lot. And so we do that for clients. But like I said copyrights, you don’t have to have the registration trademarks, you do have to have the registration. Okay, so that’s takedowns. Then, depending on what happens, if you’ve exhausted those options, your next step would be to send a letter. So if you’re trying to save as much money as possible, you want to go down the route of reaching out to the party or submitting a takedown. If those don’t work, then you want to reach out to an attorney. Have them send the letter for you. So many times I’ve had clients that have reached out and for submitted to take down or maybe they didn’t want to submit a takedown but they reached out and the other party was like calling their bluff and said okay, let me reach out to my attorney and they’re like, actually, yeah, I’ll have my attorney reach out instead. So then I reach out, send them a letter and they’re like, oh shit, they’re not bluffing. They actually have an attorney. This brings me to the Legalprenuer

 

Andrea Sager  10:00

membership because a lot of clients, they will get be in communication with somebody. And this actually happens for payments as well, which would be the reverse, it would be a demand letter, if somebody hasn’t paid and you want them to pay, you want to send them a demand letter. And clients all the time, I’m like, with the Legalprenuer membership, they’re able to just see see us on email. So if somebody ever threatens, I’m gonna get my attorney involved. I always just tell them just CCS and say, perfect, they can reach out to my attorney who is CCD on this email. And then they look and I’m like, Oh, shit, they actually have an attorney. And so the situation kind of resolves itself when that happens. And that’s like, a lot of clients say that’s the biggest flex about the legal premier membership is being able to just CCS on those emails. That’s always fun. And so same thing, anytime somebody is threatening to get an attorney involved. If you’re in the membership. Basically, you can CCS because we’re your attorney. And they’re like, oh, I’ll just have my attorney reach out like, okay, great. Have them reach out to my attorney who is here. So those are your options. Whether you want to send a cease and desist letter or demand letter, demand letters, when you want to demand somebody do something, or stop doing a cease and desist letters to haven’t stopped doing demand letters having them demanding they do something such as pay a lot. That’s typically when you want to send a demand letters when they need to pay, and what makes it worth it if they haven’t paid you $300 Do you really want to pay me 500 To $1,000 to send a letter to recover 300? That typically doesn’t make sense. But maybe it does. Maybe it’s an ongoing thing where they quite often don’t pay several $100. So it’s just what’s right for you. There’s no right or wrong answer. What is right for you, is what is best for you. So you’re the one that is able to make those decisions. I’m just here to give you the information you need to make those decisions. I hope this was helpful. Please shout us out on Instagram DM me, let me know Hey, what did you like most? Do you need more clarifying information about anything? I would love your feedback because I want to make sure that this is beneficial for you. All right. Let me know. If you have questions. Don’t forget to preorder Legalprenuer the business owners guide to legally protecting your business. And I will see you all next time.

 

Andrea Sager  12:28

Here at Legalprenuer, we’re committed to providing a supportive legal community. For all business owners. I know how scary the legal stuff can be. If you found this information helpful, I would be so grateful if you could share it with a fellow business owner. And quite frankly, it doesn’t cost anything to rate review or subscribe to the show. Your support helps me reach more listeners which allows me to support more business owners in their entrepreneurial journey. Have any questions or comments about the show? Feel free to drop me a line on Instagram. I promise I read all of the messages and comments. And if you want to be a guest on the show or know someone that would make a great guest simply fill out our application form and a team member will reach out if we think it’s a good fit. I’ll see you in the next episode.

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