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3 Mistakes You Shouldn't Make in a Cease-and-Desist Letter

By William Peacock, Esq. | Last updated on

Cease-and-desist letters are an everyday thing for owners of intellectual property, especially since the advent of the Internet. A site shares content without permission, and you, young lawyer, must convince them to take it down immediately.

It sounds simple, right? Just write a letter, recite some law, and the site owner will see the light or be scared into submission. And yet, the simple cease-and-desist task is so often botched, that at least once a month, a bad letter makes the rounds on the law blogs.

Learn from their mistakes, grasshopper.

The Letter: To Send or Not to Send

Even if the law is on your side, is it worth stirring the pot?

Consider the Streisand Effect. When you ask a website to take something down, especially in menacing legal terms, they're likely to broadcast that request to the public. Suddenly, there is a lot more interest in the forbidden topic.

For example, when someone used their game developer tools to gain access to a nude model of a video game character, based on a real-life actress, Sony sent threatening letters to a handful of websites. The images, already mildly-popular, went viral.

Obviously, some IP is too valuable, or too embarrassing, to let infringement slide. Plus, there's the risk of losing your rights (via laches or equitable estoppel) if you don't enforce them.

Taking An Overly Hostile Tone

No one likes a bully. And if your request has merit, you're far more likely to get the response you're seeking if you don't threaten to sue early, sue often. Try a soft-handed approach first. If you don't get the response you're seeking, then promise to bury them in a mountain of litigation.

We can't think of an example of this off the top of our heads, but that probably has something to do with resolved amicable conflicts not being headline-worthy. That's the point though, isn't it?

Bluffing the Law

This might just be the most common mistake made. Lawyers, thinking that non-lawyers will receive the letter, get scared by legalese, and comply with their demands, bluff their legal posture and threaten to file a lawsuit (which they've already drafted, of course). Other than small-timers, like blogs or mom-and-pop operations, most recipients will either (a) have a lawyer on staff, (b) know one, or (c) have seen enough of these letters to know better.

Our favorite example? After Gawker published a user-submitted photo of an exhibitionist Santa Claus, who received a sexual favor in front of a department store after SantaCon New York, they received a cease-and-desist from Santa's lawyer.

It was signed with Santa's real name. It turns out, however, that Santa was not just faking the law, he was faking his law degree as well. Gawker, of course, pointed out Santa's real-life identity, employer, and the sin of unauthorized practice of law.

Another example? The Township Attorney for West Orange, New Jersey tried to bully a local man's town information site into handing over the domain, citing unspecific "federally protected rights," "confustion" [sic], and "bad faith." Instead of ceding to vague legalese, the site's owner obtained pro bono counsel, who wrote a brilliantly sarcastic response. The results ended up on famed legal tabloid Above the Law.

Don't let bad desist letters happen to good clients. Think, then write.

Got any tips for cease-and-desist drafters? Tweet us @FindlawLP.

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