cease and desist letter

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Cease and desist letters in intellectual property law are an effective means of enforcing claims in the event of infringements. We know how to successfully use cease and desist letters to enforce claims and which strategies can be used to defend against cease and desist letters.

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Cease and desist letter in intellectual property law

Im Bereich des gewerblichen Rechtsschutzes (Wettbewerbs-, Patent-, Design– und Markenrecht) und im Urheberrecht ist das Instrument der Abmahnung ein zentraler Bestandteil der Rechtsdurchsetzung in Deutschland.

The cease and desist letter is a legal remedy provided for by the legal system. The cease and desist letter is intended to request the ceased and desist letter recipient to refrain from a certain unlawful act and to eliminate the resulting risk of repetition by submitting a cease and desist letter with a penalty clause. This is intended to give the person being warned the opportunity to avoid cost-intensive court proceedings by submitting a cease-and-desist declaration. Without a cease and desist letter, the party issuing the warning would also have to fear having to bear the costs of the legal dispute in the event of an immediate acknowledgement by the opponent in court.

Why are there cease and desist letters?

Cease and desist letters have an important legal function in Germany. They enable claimants and rights holders to stop infringements quickly and effectively without having to take legal action straight away. This saves time and money and relieves the burden on the courts. Cease and desist letters are often issued in the following areas:

Markenrecht: Verletzung von Markenrechten durch Nutzung einer geschützten Marke.
Patentrecht: Verletzung von Patentrechten durch unbefugte Herstellung oder Vertrieb.
Designrecht: Verletzung von Designrechten durch Nutzung eines geschützten Designs.
Urheberrecht: Verletzung von Urheberrechten durch Nutzung geschützter Werke wie Texte, Bilder oder Musik.
Wettbewerbsrecht: Verstoß gegen wettbewerbsrechtliche Vorschriften

There are also cease and desist letters in other areas, such as personal rights and employment law, although cease and desist letters in employment law are subject to different legal requirements and are therefore not comparable.

Who may issue cease and desist letters?

Not just anyone can issue a cease and desist letter for infringements of the law. For example, consumers cannot issue a cease and desist letter to a company for unfair advertising.

Zur Abmahnung berechtigt sind bei Verstößen gegen das Kennzeichen- und Markenrecht, Patent- und Gebrauchsmusterrecht, Urheberrecht und Designrecht der jeweilige Rechteinhaber oder unter Umständen Lizenznehmer, bei Persönlichkeitsrechtsverletzungen der Betroffene und bei wettbewerbsrechtlichen Ansprüchen jeder Mitbewerber sowie bestimmte Verbände (z.B. IHK, Wettbewerbszentrale, Verbraucherschutzzentralen).

How does a cease and desist letter work?

A legally correct cease and desist letter consists of several components:

Description of the infringement: Specification of the conduct complained of, e.g. the unauthorized use of a certain copyright-protected photo.
Anspruchsberechtigung: Angabe warum der Abmahnende sich berechtigt hält abzumahnen, z.B. Inhaber von Markenrechten oder Mitbewerber.
Legal basis: Information on the infringement.
Request to submit a cease-and-desist declaration: Usually – but not always – the warning letter is accompanied by a draft cease-and-desist declaration.
Information, compensation and removal: Assertion of corresponding claims, whereby damages are usually not yet quantified.
Claim for reimbursement of costs: This includes the legal fees that must be reimbursed under German law for justified cease and desist letters. In the case of patent disputes and technical matters, this may include the patent attorney’s fees in addition to the attorney’s fees.
Setting a deadline: The recipient should fulfill the claims within this deadline.

There are also other formal requirements, e.g. in copyright and competition law. A cease and desist letter is usually accompanied by a pre-formulated cease and desist letter. This is a proposal made by the cease and desist letter issuer, which the person being warned does not have to accept. He can also submit his own modified cease-and-desist declaration as long as this is sufficient to eliminate the risk of repetition due to the infringement. However, a deviating cease-and-desist declaration that does not eliminate the risk of repetition does not mean that legal proceedings can be avoided.

Cease and desist letters are usually sent by fax or email and by post, sometimes also by registered mail. Unlike in some other countries, there are no formal requirements for the method of dispatch in Germany.

Received a cease and desist letter?

How to react

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cease and desist letter!

A cease and desist letter, e.g. for infringement of competition law, industrial property rights or copyright, should always be taken seriously, as it can have considerable legal and financial consequences.

Timely and professional advice is crucial in order to minimize risks and develop the right strategy.

Check cease and desist letter: Have the cease and desist letter legally checked. Not every cease and desist letter is justified, formally correct and abusive cease and desist letters are unlawful.
Observe the deadline: Be sure to respond within the set deadline to avoid further legal action such as an injunction or a lawsuit.
Check the cease-and-desist declaration: Do not sign a pre-formulated cease-and-desist declaration without legal advice. It could be too far-reaching and lead to considerable and lasting disadvantages. Once a cease-and-desist declaration has been signed, it is almost impossible to get rid of it and can result in considerable follow-up costs in the form of high contractual penalties.
Strategy: Regardless of whether the cease and desist letter is justified or not, you should consider the right strategy for responding to the cease and desist letter with professional support. Many aspects play a role here. For example, there may be formal errors or the submission of a cease-and-desist declaration may involve incalculable risks.

Summarized

Cease and desist letters are an effective means of settling infringements of intellectual property rights and copyright out of court. Although they are unpleasant for the person being warned and can be associated with considerable costs and risks, they help to avoid a legal dispute. If you receive a cease and desist letter, you should act quickly but in a considered manner and seek legal advice. A professional examination of the allegations and claims can help to avoid unnecessary costs and legal disadvantages.

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