A notice is basically a legal written communication whereby the sender makes receiver aware of the former’s legal rights and the breach caused by the latter. With respect to infringement of Intellectual Property rights, IP holder has an option of issuing a cease and desist notice to the infringer in order to enforce their IP rights. A cease and desist notice includes details of the IP rights holder, their prior rights in the IP, the infringing acts of the opposite party and prohibits the latter from doing all infringing activities and further to undertake to never repeat certain acts that violate the legal rights of IP rights holder.
A cease and desist notice can be issued with respect to any form of IP that is infringed, such as trademarks, patents, copyrights, designs, etc. It simply implies to stop i.e. cease and to not to continue i.e. desist from undertaking activities related to IP infringement. A cease and desist letter is considered cogent evidence and can be submitted in the Court of Law to show the vigilance of the IP rights holder in taking action against subsequent infringers.
IP infringement can be understood as unauthorized use , infringement or violation of an intellectual property right. It is the violation of the rights of the IP holder. Trademark infringement can be in terms of trade name, a copy of any word mark, logo or symbol, shape of product, packaging type, labels etc. Infringement of a trademark occurs when the infringer uses either identical or similar mark or deceptively similar or confusing mark to an earlier trademark. Once the holder of trademark or copyright or any other form of IP gets to know about infringement of their IP rights by the infringing party, one of the recourses is to send a cease and desist notice to the infringer.
Legal notices are sent prior to initiating any law proceedings against the infringing party, to make them aware of their acts and direct them to refrain from doing such acts. Sending legal notice is an effective method of protecting IP rights. There are certain advantages of sending legal notice to the infringing party –
- Simple and cost effective method of resolution for IP infringement,
- Less time taken as compared to initiating a lawsuit for IP infringement,
- Provides one chance to the infringing party to stop doing infringing activities,
- Helps in ascertaining the intentions of the other party related to the IP infringement,
- Serves notice to the infringer making them aware regarding IP holder’s rights,
- Serves notice to the infringer regarding prevalent laws related to IPR,
- Act as a warning to the infringing party that non compliance with the notice will make IP holder to file a law suit and start legal proceedings against the infringer,
- Serves to protect the rights of IP holder who tried to resolve the matter by making infringing party aware of the law and thereby giving the infringer a chance to cease all illegal activities by serving cease and desist notice.
However, serving legal notice to the infringing party is not the only option which guarantees a resolution as many times infringing party just ignores the notice and does not refrain from undertaking infringing activities. The downside of sending a cease and desist letter can be that the infringer either files caveat before the Court thereby negating the possibility of an ex-parte order or a suit for groundless threat against the sender. Thus, sending a cease and desist letter has its own pros and cons and must be carefully decided, depending on the facts of the case.
Generally, legal notices need to mention complete details and purpose of the notice. It may include name and contact details of both parties, work protected under IPR, date of work created and published, description in detail about the violation of the IP rights, demands of the IP holder, reasonable time to reply, all inconveniences caused to the IP holder, notice duly signed by lawyer, all facts related to the infringement of the IPR and all legal consequences about the infringement. Sending a legal notice is considered one of the first recourses to stop IP infringement before filing a lawsuit.
It is always advisable to consult best IP lawyers to get the legal notice drafted and sent to the infringing party as legal notice is highly essential document. As a cease and desist letter needs to be strategically drafted depending on the facts and strength of the matter, laying out all important details of the IP holder’s rights and the infringing acts of the opposite party, the consequences and repercussions of the same, having a legal notice drafted and sent through expert law firm is necessary.