You Received a Cease and Desist Letter. Now What?

A cease and desist letter is not a lawsuit, and it is not a court order. It is one party’s statement that it believes you are infringing its rights and its demand that you stop by a date it chose. Some of these letters are the last step before a complaint is filed. Some are bluffs sent to see who folds. The letter itself rarely tells you which, and the worst responses are the two instinctive ones: throwing it away, or calling the sender to argue. What follows is the sequence CLP’s IP litigation and dispute resolution team walks through with a client who has just received one.

First day: deadline, preservation, and silence

Calendar the response deadline in the letter. It is not a legal deadline, but letting it pass without any reply is the most reliable way to turn a letter into a complaint. If you need more time, a short written request for an extension, with no substantive comment, is usually granted and costs nothing.

Preserve everything related to the accused product, content, or mark: design files, dates of first use, sales records, communications with whoever created it, and the marketing that uses it. Once a dispute is reasonably anticipated, a duty to preserve evidence attaches, and deleting the old logo files or the draft that shows where the content came from can be used against you later even if the deletion was innocent.

Do not contact the sender, their client, or anyone connected to the dispute, and do not post about it. Statements made in anger or in an attempt to explain are admissions, and the sender’s counsel is collecting them. Do not take down the product or content yet either, unless the risk is obviously severe. Removal before analysis can be read as a concession and may be unnecessary.

Week one: evaluate the sender’s rights

The letter will assert rights. Verify them. For a trademark claim, look up the registration in the USPTO’s database and check the owner, the goods and services covered, the filing and registration dates, and whether the registration is live. For a copyright claim, search the Copyright Office’s records for a registration and note its effective date; a sender who has not registered cannot yet sue on a U.S. work and cannot claim statutory damages for infringement that began before registration. For a trade secret or patent claim, the analysis is more involved and needs counsel from the start.

Then test the claim on its merits. A trademark claim requires a likelihood of confusion, which depends on the similarity of the marks, the relatedness of the goods or services, the channels of trade, the strength of the sender’s mark, and evidence of actual confusion. Two similar names in unrelated industries often do not conflict. A copyright claim requires that you copied protectable expression, not merely an idea, a style, or a functional element, and your use may be licensed or may qualify as fair use. Priority matters in trademark disputes: if you were using the mark first in your geographic area, you may have rights the sender’s registration does not reach. The letter is written to sound certain. The actual strength of the claim is often much lower, and sometimes much higher, than its tone suggests.

Week one: evaluate your exposure

Alongside the merits, assess the stakes. How central is the accused name, product, or content to your business? What would a rebrand or a rewrite cost? How much revenue is tied to it? What damages could the sender plausibly claim? If the sender’s claim is weak but the accused mark is a product you were about to retire anyway, the economically correct answer may be to stop. If the claim is weak and the mark is your company name, it is worth defending.

Notify your insurer. Commercial general liability policies often include “advertising injury” coverage that can respond to certain trademark and copyright claims, and the notice deadlines are short. A late notice can forfeit coverage for the defense costs.

Four ways to respond to a cease and desist letter

With the facts in hand, the choices narrow to four, sometimes combined:

• Comply. Stop the accused use, confirm in writing, and request a release. Appropriate where the claim is strong and the asset is replaceable.
• Negotiate. Propose a coexistence agreement, a phase-out period, a license, or a modification that resolves the concern. Common where both sides have legitimate interests and neither wants to litigate.
• Respond and refuse. A reasoned letter explaining why the claim fails, supported by the facts and law, often ends the matter. The sender’s counsel will reassess once they see the defense.
• File first. If the letter creates a genuine threat of litigation, you may file a declaratory judgment action in a forum of your choosing to have a court declare non-infringement. This takes the timing and venue away from the sender and is a strong move in the right case, but it starts a lawsuit.

Ignoring the letter entirely is a fifth option that occasionally works against a low-effort sender, but it forfeits control, and the first notice you receive afterward may be a summons.

What the response letter should and should not say

A response should be factual, measured, and limited to what is necessary. It should state the extension of time if one is needed, reserve all rights and defenses, and, if refusing the demand, explain why with reference to the registration record and the facts. It should not volunteer information about the origin of the accused material beyond what supports the defense, should not make admissions, and should not threaten counterclaims that cannot be backed up. For trademark matters that involve a pending application or registration, the letter may also need to address the possibility of an opposition or cancellation proceeding, which our trademark enforcement and TTAB proceedings page covers.

If the letter came with a platform takedown

Senders often pair a letter with a DMCA notice to your host or a complaint to a marketplace, which can remove the content before you have responded. The counter-notice process and its timing are described in our post on how a DMCA takedown works. The letter and the takedown should be handled together, because a counter-notice invites the sender to sue within a short window, and the response strategy should anticipate that. For the view from the other side of the table, including what a sender should verify before writing, see our post on when to send a cease and desist letter.

If a demand letter has landed in your inbox, a consultation with Capitol Law Partners can evaluate the claim and your exposure before the deadline passes. Schedule a consultation.

This article is for informational purposes only and does not constitute legal advice. No attorney-client relationship is formed by this communication.

Attorney Cagatay Ersoy. Practical strategy for founders, investors, and growing companies.

Need help with this topic? See our IP litigation and dispute resolution page or schedule a consultation.