What to Do If You Get a Cease and Desist
What a Cease and Desist Letter Actually Means
A cease and desist letter is not a court order. You are not legally required to comply with it, and ignoring it does not automatically result in a lawsuit or penalty. It is a formal statement from another party asserting that you are violating their legal rights and demanding that you stop. The letter creates a paper trail establishing that you were put on notice of the alleged violation, which becomes relevant if the matter proceeds to litigation because it can be used to argue that any continued violation after receiving the letter was willful.
The letter typically identifies the specific legal right being asserted (trademark, copyright, patent, contractual right, or other legal claim), describes the activity that allegedly violates that right, demands that you stop the activity by a specific deadline, demands that you take corrective actions (such as removing content, destroying infringing products, or providing an accounting of profits), and warns of legal consequences (lawsuit, injunction, damages) if you do not comply.
The tone of cease and desist letters ranges from politely firm to aggressively threatening, but the tone does not indicate the strength of the underlying claim. A calmly worded letter from a top IP law firm may represent a much more serious threat than an angry letter from a solo practitioner. Focus on the substance of the claim, not the rhetoric surrounding it.
Immediate Steps After Receiving a Cease and Desist
Do not panic and do not respond immediately. The worst thing you can do is fire off an angry reply, immediately comply with every demand, or ignore the letter entirely. Each of these responses can hurt you. An angry reply provides the sender with evidence that can be used against you. Immediately complying with every demand may concede rights you actually have. Ignoring the letter allows the sender to argue you willfully continued the violation after being put on notice.
Read the letter carefully and identify the specific claim. What exactly is the sender alleging? Are they claiming you infringed their trademark by using a similar name? Are they claiming you copied their copyrighted content or photographs? Are they claiming you violated a non-compete or confidentiality agreement? Are they claiming your product infringes their patent? The type of claim determines your response strategy.
Preserve all evidence. Do not delete anything related to the claim, including the accused product listings, website pages, marketing materials, emails, contracts, and any documentation of when you started using the name, design, or content in question. If the matter proceeds to litigation, destruction of evidence (spoliation) can result in severe sanctions including adverse inferences where the court assumes the destroyed evidence would have been unfavorable to you.
Note the deadline. Most cease and desist letters give a compliance deadline of 7 to 30 days. If you cannot evaluate the claim and respond by the deadline, have your attorney send a brief response acknowledging receipt and requesting a reasonable extension. Most senders will grant a 14 to 30 day extension because they prefer a negotiated resolution over litigation.
Evaluating the Claim
Not every cease and desist letter represents a legitimate legal claim. Some are sent speculatively by companies that aggressively police their brands even against non-infringing uses. Others are sent by patent trolls asserting overly broad patents against common business practices. Evaluating the legitimacy of the claim before responding is essential.
For trademark claims: Look up the sender's trademark registration on the USPTO's TESS database. Is the mark registered? In what classes of goods? Is the registration active or expired? Then evaluate the actual likelihood of confusion. Are you using the same or a similar mark for the same or related goods? Trademark law does not prevent all use of similar words, only use that is likely to confuse consumers about the source of the goods. If you sell pet food under the name "Sunshine Pet Co." and a sunscreen company called "Sunshine Brands" sends you a cease and desist, the likelihood of confusion is probably low because the products and markets do not overlap.
For copyright claims: Determine whether you actually used the sender's content. If you did, evaluate whether the use was substantial or trivial, and whether any fair use defense might apply. If you used a photographer's image without permission, the claim is likely valid. If the claim is over two product descriptions that happen to use some of the same words to describe the same product, the claim may be weaker because functional descriptions of a product have limited copyright protection.
For patent claims: Patent cease and desist letters require the most careful evaluation because patent claims are complex and the stakes are high. The letter should identify the specific patent number and the claims within the patent that are allegedly infringed. Have a patent attorney review the claims and evaluate whether your product or process actually falls within the scope of the patent. Many patent assertion letters assert broad patents against activities that do not actually infringe, particularly letters from patent assertion entities (patent trolls) that acquire patents solely for licensing and litigation revenue.
Response Options
Comply fully. If the claim is clearly valid and compliance is not overly burdensome, the fastest and cheapest resolution is to comply. Remove the infringing content, change the confusing name, stop selling the patented product, or take whatever corrective action the letter demands. Respond in writing confirming the actions you have taken. Full compliance typically ends the matter with no further cost.
Comply partially and negotiate. If the claim has merit but the demands are excessive, you can comply with the core demand while pushing back on unreasonable requests. For example, if you receive a trademark cease and desist demanding that you stop using a name, destroy all inventory bearing the name, provide an accounting of all profits earned using the name, and pay $50,000 in damages, you might agree to stop using the name and phase out existing inventory over 90 days while declining the profit accounting and damages demands. Many cease and desist situations resolve through negotiation because litigation is expensive for both sides.
Dispute the claim. If you believe the claim is invalid, respond through an attorney explaining why you believe your activity does not violate the sender's rights. For trademark disputes, your response might demonstrate that there is no likelihood of confusion because your products, markets, and customer bases do not overlap. For copyright disputes, your response might argue fair use or that the allegedly copied elements are not protectable (such as functional product descriptions or common phrases). A well-reasoned legal response from an attorney often ends the dispute because the sender's attorney recognizes that litigation would be uncertain and expensive.
Ignore the letter. Ignoring a cease and desist is a calculated risk. If the claim is baseless and the sender is unlikely to follow through with litigation, ignoring it may work. However, if the claim has merit, ignoring the letter means the sender can proceed directly to litigation without further warning, and your failure to respond will be presented as evidence of willful infringement, which can increase damages. Generally, responding is better than ignoring, even if your response is a brief statement that you disagree with the claim and are evaluating your options.
Common Cease and Desist Scenarios for Online Sellers
Trademark cease and desist from a brand owner. If you resell branded products and use the brand's name and logos in your listings, the brand owner may send a cease and desist alleging trademark infringement. In most cases, you have the right to use a trademark to accurately describe products you are legitimately selling (this is called "nominative fair use"). However, using the trademark in ways that suggest an official relationship, endorsement, or authorization that does not exist can cross the line. Ensure your listings make clear that you are a third-party seller, not the brand itself.
Copyright cease and desist for product photos. This is one of the most common scenarios for ecommerce sellers. You used a competitor's, manufacturer's, or photographer's images on your product listings without permission. If the images are not yours, the claim is almost certainly valid. The best response is to immediately remove the images, respond to the sender confirming removal, and invest in your own product photography going forward. Attempting to argue fair use for commercial product photos used in competing listings is almost never successful.
Patent assertion letters. If you receive a letter from a company you have never heard of claiming your product or business method infringes their patent, it may be from a patent assertion entity. These entities buy patents and send large volumes of licensing demand letters seeking per-unit royalties or one-time payments, typically $5,000 to $50,000 for small businesses. Before paying, consult a patent attorney to evaluate whether the patent is valid, whether your product actually infringes, and whether the licensing demand is reasonable. Many patent assertion claims do not survive scrutiny.
Non-compete cease and desist from a former employer. If you started your ecommerce business after leaving an employer with a non-compete agreement, the former employer may send a cease and desist claiming your business violates the non-compete. The enforceability of non-compete agreements varies dramatically by state. California bans non-competes entirely. Other states enforce them only if they are reasonable in scope, duration, and geographic reach. An employment attorney in your state can evaluate whether the agreement is enforceable and what adjustments to your business, if any, are necessary.
When to Hire an Attorney for a Cease and Desist
Hire an attorney when the claim involves substantial money or a core element of your business (your brand name, your primary product, your customer database), when you intend to dispute the claim, when the letter comes from a large law firm or a well-funded company that is likely to follow through with litigation, when you do not understand the legal basis of the claim, or when the demands include financial compensation or an accounting of profits. An attorney consultation for evaluating a cease and desist costs $200 to $500. Drafting a formal response costs $500 to $2,000. Both are small investments compared to the $20,000 to $100,000 cost of defending a lawsuit that could have been resolved at the cease and desist stage.