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  • Writer's pictureRay "Ordinary Dad" Magee

Cease and Desist - Part II

Yep, that’s me!

I’m at the courthouse again. After my Cease and Desist letter from Cinch Home Services legal representative last week for my blog, I decided to seek my own counsel. So I went back to the courthouse.

I was very fortunate enough to have some great legal friends, Google, and amazing resources at my local Courthouse. If you haven’t checked out the amazing people and resources at your own local Courthouse, I encourage you to do so.

So, today I was given some great information to answer important questions about my Cease and Desist letter, and file the Bill of Particulars and Subpoena duces Tecum document (more to come on these two documents at a later date).

Cease and Desist is defined this way (Cornell Law School):

A cease-and-desist-letter is a cautionary letter sent to an alleged wrongdoer describing the alleged misconduct and demanding that the alleged misconduct be stopped. A cease-and-desist letter provides notice that legal action may and will be taken if the conduct in question continues. Such letters are usually written by attorneys and are often sent to stop alleged or actual infringement of intellectual property rights, such as copyrights, trademarks, and patents.

Here's an additional breakdown of a Cease and Desist letter from McClanahan Powers, PLLC:

It may look official, embossed with the logo of a major corporation’s law firm, but cease and desist letters aren’t legal documents. Cease and desist letters simply put the receiving party on notice of a potential dispute, typically an intellectual property dispute. Anyone can send a cease and desist letter, but they are normally drafted by an attorney and commonly used when the owner of a trademark, copyright, or patent believes you’re using his or her intellectual property without authority. They are asking you to cease the perceived illegality and desist from engaging in future illegality. You are not legally obligated to respond or take the requested action after receiving a cease desist letter, but there may be consequences if you don’t.

Here are three Steps advised by McClanahan Powers, PLLC you can take if Cinch Home Services decides to use an intimidation tactic during your Small Claims process:

Relax & Reflect: Cease and desist letters, whether formally served or mailed, do not legally require a response. Even if action is demanded or “required” by the sender, cease and desist letters are not summons and complaints. The sender may threaten to file litigation if a response is not received, but the letter does not mean a lawsuit has been filed. Instead, the letter is a warning of sorts. It may reiterate your legal obligations under a binding court order, warn of impending litigation, or simply request more information about a perceived legal violation. Scan or make a copy of the letter, date the envelope, and don’t respond in haste. These letters are meant to sound threatening and coerce your compliance.

Analyze & Gather Information: Read the letter thoroughly to identify the sender, his or her complaint, the action he or she demands you take, and the threatened consequences of non-action. For example, the letter may come from the law firm for the parent company of a subsidiary you did business with last year. Contact an attorney immediately if the letter comes from local, state, federal, or international officials. Once the sender is identified, consider the nature of the complaint. Are they citing copyright law? International trademark law? A previous court order? If so, gather any information you can about the subject of the complaint and relationship of the sender to your business.

Contact an Attorney: Take or send the cease and desist letter to a business and intellectual property lawyer along with any related documentation. Many attorneys will review and interpret cease and desist letters at little to no cost. This can give you peace of mind and help you prepare for the next step. Sending a response from a law firm is often enough to deter overzealous corporate attorneys or open a mutually beneficial dialog between the parties. It’s not recommended you take action or respond to a cease and desist letter without the assistance of an experienced business and intellectual property litigation attorney.

Cease and desist letters take different forms depending on the sender and content. Some are more formal while some are overtly threatening, and not every demand letter comes from a lawyer. An experienced business defense attorney can review and respond appropriately to any cease and desist directed at you or your business or threatening your intellectual property.

So, in summary unless the order comes from an actual officer of the court you don’t even need to respond. It’s just another tactic for Cinch Home Services to try to bully you into abandoning your claim. Just fasten your seat belt and stay firm for the ride.

And try to have a little fun while you’re doing it.

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