- “I’ve received a cease and desist letter, what should I do?”
“I’ve received a cease and desist letter, what should I do?”
“I’ve received a cease and desist letter, what should I do?”16th November 2020 - Published by Kuits intellectual property team
Receiving a letter before claim or a cease and desist letter for infringing someone’s intellectual property can be a shock for anyone and you might not be sure of where to turn.
The Kuits Intellectual Property team has set out below five steps that you can take if you are in that position:
- Take a deep breath. If you have never received a letter of this nature before it can be overwhelming and massively surprising, often leading to a number of thoughts and panic. It is important to take a step back, maybe give it ten minutes and then re-read the letter back to yourself slowly noting exactly what is being alleged. Take note of who is alleging what and in what capacity e.g. are allegations being made against you as a company, are you included personally as a director, do you know the party making the allegations?
- Are there any deadlines? Another point to take into consideration is whether any deadline is given within the letter. Generally speaking, letters from solicitors are covered by a pre-action protocol. This means that a reasonable period of time needs to be given to a person without legal representation to consider the allegations made against them and seek the relevant legal advice. It can therefore be important to act quickly.
- Understand the contents of the letter before action/cease and desist letter. More often than not, due to the level of detail required to be presented by the court, the letters received by a defendant are lengthy with numerous annexes. For this reason, in line with point 1 above, it can be important to take stock and see what is being alleged and gather your thoughts in response, for example by making a chronological note.
- Document preservation. Do not delete any documentation or communications which may be considered to be “evidence”. There is an obligation which arises between the parties in the event that proceedings are contemplated of not destroying any documents which may need to be disclosed further down the line. For this reason, it is important that neither you nor your employees delete documents or correspondence which may assist the claim or indeed, even if they are detrimental to your position.
- Seek Advice. Lastly, instruct a legal representative with the relevant expertise. When it comes to IP, it is important to instruct a solicitor who is familiar with this specific area of law. Having an experienced practitioner in your corner will give you the ability to draw on their involvement from previous cases and give you a view of what the risks are of entering into litigation and the options available to you.
Simply ignoring this kind of correspondence is not recommended. It may result in proceedings being issued at Court against you without any further notice.