Cease-and-Desist vs. Demand Letter: Enforcing Your IP Without Overplaying Your Hand

You discovered that someone is using your copyrighted images on their website. Or a competitor launched a product with a name confusingly similar to your registered trademark. Or a former contractor is using your confidential business information in their new venture. Your instinct is to send a strongly worded letter demanding they stop immediately and threatening legal action if they do not comply. But before you fire off that letter, you need to understand the difference between a cease-and-desist letter and a demand letter, the legal frameworks that govern them, and the significant risks of overplaying your hand.

The distinction matters because intellectual property enforcement letters are not just business communications. They trigger legal privileges, anti-SLAPP protections, ethical obligations, and potential criminal exposure if done poorly. They can also create unintended procedural consequences, such as giving your opponent the right to sue you first in their preferred forum through a declaratory judgment action. A letter that is too aggressive can make you look like a bully, damage your reputation, and expose you to sanctions. A letter that is too weak may fail to establish the notice necessary for enhanced damages or fail to stop the infringement before it causes more harm.

This article explains when to use a cease-and-desist letter versus a demand letter, how different types of intellectual property rights create different strategic considerations, the legal protections and constraints that apply to pre-litigation communications, and how to calibrate your enforcement efforts to achieve your goals without triggering anti-SLAPP motions, extortion concerns, or reputational damage.

Understanding the Core Distinction

A cease-and-desist letter and a demand letter are related but serve different primary functions. Understanding which tool to use requires clarity about what you are trying to accomplish.

The Cease-and-Desist Letter

A cease-and-desist letter focuses on stopping conduct. The essential message is: “You are doing something that violates my rights. Stop immediately and confirm in writing that you have stopped and will not resume.” The letter identifies the conduct, explains why it is unlawful or unauthorized, and demands that it cease. The letter may or may not include a deadline and may or may not threaten litigation if the conduct continues.

Cease-and-desist letters are common in intellectual property disputes because the harm is often ongoing and the primary goal is to make it stop. If someone is using your trademark, displaying your copyrighted images, or incorporating your patented technology into their product, every additional day of use creates additional harm. Your immediate objective is not necessarily to recover past damages but to end the infringement.

The cease-and-desist letter can serve several legal functions beyond just asking the infringer to stop. It establishes actual notice, which may be relevant for proving willfulness or for calculating damages. It creates a written record that you are actively policing your intellectual property rights, which can be important for defending against claims of abandonment or acquiescence. It may also satisfy pre-litigation notification requirements in some contexts or create the foundation for injunctive relief if the matter goes to court.

The Demand Letter

A demand letter focuses on obtaining a remedy. The message is: “You did something that harmed me. Here is what you owe me, and here is the deadline for paying or otherwise making it right.” Demand letters typically include a detailed explanation of the wrongful conduct, a calculation of damages or a description of other remedies sought, and a deadline for response or payment.

In intellectual property disputes, demand letters are appropriate when the primary harm has already occurred and can be quantified. If someone used your copyrighted photograph in an advertising campaign that already ran, or if they sold counterfeit products bearing your trademark, or if they unlawfully obtained your customer list and used it to solicit your clients, the immediate focus may be on compensation for past harm rather than just stopping future conduct.

Demand letters often combine elements of cease-and-desist: “Stop using our mark AND pay us $50,000 for the past twelve months of unauthorized use.” The emphasis in such hybrid letters depends on which remedy is primary. If your main concern is stopping the conduct and the money demand is secondary or primarily intended to establish seriousness, the letter functions more as a cease-and-desist. If the conduct has already stopped or is minor compared to the past harm, and your focus is on recovering damages, the letter is primarily a demand.

Strategic Considerations in Choosing Your Approach

The choice between pure cease-and-desist, pure demand, and hybrid approaches depends on several factors:

Relationship preservation. If you might want to license your rights to the other party or maintain a business relationship, a pure cease-and-desist that invites a licensing discussion may be more effective than an aggressive demand for money. Demand letters with high dollar amounts can burn bridges and escalate conflicts that could have been resolved cooperatively.

Litigation readiness. A demand letter with a specific dollar figure and a short deadline creates a higher risk of triggering a declaratory judgment action, in which the recipient sues you first in their preferred forum asking a court to declare they are not liable. If you are not ready to litigate, a softer cease-and-desist may be the better approach.

Deterrence versus recovery. If your primary goal is to establish a pattern of enforcement to deter others in your industry, a cease-and-desist that results in public compliance (or a settlement announcement) may be more valuable than trying to extract maximum monetary damages from each infringer.

Evidentiary needs. If your intellectual property requires notice to establish certain types of damages or enhanced remedies, the cease-and-desist performs an essential legal function even if you never collect a dollar. Patent owners, for example, often send notice letters primarily to establish a date from which future damages can be calculated.

Copyright Enforcement: Balancing Direct Letters with DMCA Notices

Copyright enforcement presents unique strategic choices because you have multiple procedural paths: direct cease-and-desist or demand letters to the infringer, DMCA takedown notices to platforms hosting the infringing content, or both.

The Copyright Act’s Statutory Framework

The Copyright Act grants copyright owners a bundle of exclusive rights, including reproduction, distribution, public display, public performance, and preparation of derivative works. Infringement occurs when someone exercises one of these rights without authorization. The copyright owner may seek injunctive relief to stop ongoing infringement and may recover actual damages (including the infringer’s profits) or statutory damages ranging from $750 to $30,000 per work, or up to $150,000 per work for willful infringement.

For purposes of cease-and-desist and demand letters, the key statutory provisions are these. First, copyright registration is required before filing suit for U.S. works. Second, statutory damages are available only for infringement that occurred after registration (with a limited exception for infringement that began before registration and continued after). Third, the statute allows recovery of attorney fees in the court’s discretion, making copyright claims more economically viable than many other types of intellectual property disputes. Fourth, willful infringement increases the potential statutory damages and makes fee-shifting more likely.

These factors influence your letter strategy. If you have not yet registered your copyright but need to send a letter to stop ongoing infringement, you need to complete registration as quickly as possible. The letter establishes notice that can support a willfulness finding if the infringement continues after registration. If the infringement has already stopped, registering before sending a demand letter allows you to threaten statutory damages and fees, which significantly increases your leverage.

Direct Cease-and-Desist to the Infringer

A direct cease-and-desist letter to a copyright infringer allows for nuanced solutions that DMCA notices to platforms cannot provide. You can propose a license, request attribution, negotiate a settlement that includes both a cease-and-desist and a reasonable payment for past use, or explore whether the use might be authorized under circumstances you had not considered.

The letter should identify the copyrighted work with specificity, provide proof of your ownership (such as registration certificate number or date of creation and publication), describe how the recipient is using the work, explain why the use is not authorized, and demand that the use stop immediately. If you are also seeking compensation for past use, the letter should calculate damages based on your normal licensing fees, the infringer’s revenue attributable to the infringing use, or the statutory damages range.

One advantage of direct letters over DMCA notices is privacy. DMCA takedown notices sent to platforms are often forwarded to databases like Lumen (formerly Chilling Effects), where they become public records. Your enforcement letter, your identity, and even the existence of the dispute can end up searchable online, creating PR risk and exposing your enforcement patterns to competitors and future infringers. Direct letters to infringers remain private unless the dispute escalates to litigation or the recipient chooses to publicize it.

The main disadvantage of direct letters is speed. If the infringing content is on a website or social media platform, a DMCA notice can often get it removed within days or even hours. Direct negotiations with an infringer can take weeks or months, during which the infringement continues. The strategic choice depends on whether immediate removal is critical or whether the relationship and the potential for a negotiated resolution are more valuable.

DMCA Takedown Notices

Section 512 of the Copyright Act provides safe harbors for online service providers that host user-generated content, provided they implement certain policies and respond promptly to DMCA takedown notices. The notice-and-takedown system allows copyright owners to notify platforms of infringing content, and the platform must remove the content to maintain safe harbor protection.

DMCA notices are fast and effective for getting content removed from major platforms. But they come with risks and limitations. Section 512(f) imposes liability for knowing material misrepresentation in a takedown notice. The statute requires a good faith belief that the use is not authorized, but courts have interpreted this to require subjective bad faith for liability to attach. In practice, 512(f) claims are difficult to win, but the risk exists, and the reputational damage of being accused of abusing DMCA takedowns can be significant.

DMCA notices are also binary: the content comes down or it does not. There is no room for negotiation, licensing, or nuance. The alleged infringer can file a counternotice claiming the use is authorized, and if they do, the platform must restore the content unless you file a lawsuit within ten business days. This means a DMCA takedown can force you into litigation before you are ready.

Additionally, DMCA notices are public. They are forwarded to Lumen and other databases, where your enforcement activities become part of the public record. If you are a company that enforces copyrights aggressively, or if you are enforcing against a sympathetic defendant (such as a nonprofit, journalist, or critic), the publicity can create backlash. The risk is even higher if your takedown notice targets content that might be fair use, such as commentary, criticism, news reporting, or parody.

Combining Approaches

Many copyright owners use both tools strategically. Send a DMCA notice to get obviously infringing content removed quickly from platforms, while simultaneously or shortly afterward sending a direct cease-and-desist to the infringer seeking broader relief, such as agreement not to post infringing content elsewhere, an accounting of the use, and compensation for past infringement.

This combined approach is particularly effective when the infringer is using your content across multiple platforms or in ways that DMCA notices cannot reach (such as in physical products or offline marketing). The platform takedown stops the immediate harm and establishes that you are serious about enforcement, while the direct letter addresses the broader infringement and opens the door to settlement.

Trademark Cease-and-Desist: Policing Without Bullying

Trademark enforcement through cease-and-desist letters is both necessary and fraught with risk. Trademark rights are maintained through active policing; failure to enforce can lead to claims that your mark has become generic or that you have acquiesced in third-party use. At the same time, overaggressive trademark enforcement has earned the label “trademark bullying,” and companies that send broad cease-and-desist letters to small businesses, nonprofits, or critics face PR disasters and legal backlash.

The Lanham Act Framework

The Lanham Act provides several causes of action relevant to cease-and-desist letters. Section 32 prohibits use of a registered mark in commerce in a manner likely to cause confusion, mistake, or deception as to the source of goods or services. Section 43(a) creates liability for false designation of origin or false or misleading descriptions of goods, even for unregistered marks. Section 43(c) creates a separate claim for dilution of famous marks by blurring or tarnishment, which does not require likelihood of confusion.

Trademark cease-and-desist letters must tie the claimed infringement to one or more of these legal theories. The most common theory is likelihood of confusion under Section 32 or 43(a). The analysis requires showing that the defendant’s use of a mark that is similar to yours, in connection with related goods or services, in overlapping channels of trade or geographic markets, is likely to cause consumers to believe the goods come from you or are affiliated with you.

Dilution claims are available only for famous marks, and dilution cease-and-desist letters require careful drafting. Claiming that a mark is famous when it is not exposes you to criticism and potential misuse arguments. Courts apply stringent standards for fame, requiring widespread recognition by the general public, not just recognition within a niche industry.

When Trademark Letters Are Necessary

Trademark owners must police their marks to prevent unauthorized use from ripening into defenses like acquiescence, laches, or genericide. If you discover that other companies in your industry are using marks confusingly similar to yours and you do nothing, those parties may later argue that you implicitly consented to the use or that you waited too long to complain. Even worse, if your mark becomes the generic term for a type of product or service (as happened to “escalator,” “aspirin,” and “thermos”), you lose trademark rights entirely.

Cease-and-desist letters serve the policing function by creating a written record that you are aware of the use, you object to it, and you are taking steps to stop it. Even if you ultimately decide not to sue or you reach a settlement that allows limited continued use, the letter establishes that you are actively protecting your mark.

How Trademark Bullying Happens

Trademark bullying occurs when trademark owners send cease-and-desist letters asserting rights they do not have, against uses that are not infringing, to parties with fewer resources to fight back. Common patterns include claiming exclusive rights in descriptive or generic terms, asserting trademark rights over uses that are clearly nominative fair use or parody, sending letters to critics or activists to chill speech, and demanding that small businesses abandon marks they have used for years even though the marks are not confusingly similar.

Academic literature and practitioner commentary identify several features of abusive trademark cease-and-desist letters. They overstate the strength and scope of the trademark owner’s rights. They ignore defenses and limitations such as fair use, geographic limitations, or differences in goods and services. They threaten litigation without meaningful analysis of likelihood of confusion. They demand not only that the recipient stop using the mark but that they pay substantial damages, turn over all inventory, and agree to injunctions far broader than any court would order.

The absence of a robust trademark misuse doctrine in U.S. law means there is little formal penalty for sending overbroad cease-and-desist letters, but the informal penalties can be severe. Recipients post the letters online, consumer groups publicize them, and the media covers them. A company that becomes known as a trademark bully suffers reputational harm that can outweigh whatever trademark benefit the aggressive enforcement achieved.

Drafting Trademark Letters That Avoid Bullying Accusations

To enforce trademark rights without crossing into bullying, your cease-and-desist letter should be grounded in a genuine analysis of likelihood of confusion. Begin by identifying the specific goods or services on which you use the mark and on which the recipient is using their mark. Describe the overlap or relatedness. Explain the similarity between the marks in terms of sight, sound, meaning, and commercial impression. If the goods are sold in the same retail channels, marketed to the same customers, or promoted through similar advertising, describe that overlap.

Your letter should acknowledge limitations on your rights. If your mark is registered only for certain goods or in certain classes, say so. If the recipient is using a mark in a different industry or geographic market, address whether confusion is still likely despite that difference. If the recipient’s use might qualify as nominative fair use (using your mark to refer to your product) or descriptive fair use (using words that happen to be in your mark but in their ordinary descriptive sense), engage with that issue rather than ignoring it.

The remedy you seek should be proportional. If the recipient is a small local business and you are a national brand, and the overlap is minimal, consider whether a geographic limitation or a disclaimer might resolve the confusion rather than demanding they change their entire brand. If the confusion is limited to a specific product line, consider whether they can continue to use the mark for other products. If the recipient recently adopted the mark and has not yet built significant goodwill in it, a phased transition might be reasonable.

Tone matters. A letter that says “we believe there may be consumer confusion and we would like to discuss how to address it” is far less likely to create backlash than a letter that says “you are infringing our famous trademark and must cease all use immediately and pay us damages.”

Patent Notice Letters and the Declaratory Judgment Trap

Patent cease-and-desist letters require unique strategic considerations because of the significant risk of creating a justiciable case or controversy that allows the recipient to sue you first.

Why Patent Owners Send Notice Letters

Patent owners send notice letters for several reasons. First, actual notice of the patent and the alleged infringement can establish a date from which damages accrue, particularly for patentees who have not marked their products with the patent number. Second, notice can support a finding of willfulness, which can result in enhanced damages up to treble the actual damages. Third, many patent owners prefer to license their patents rather than litigate, and the notice letter is the opening move in licensing negotiations.

Patent notice letters vary widely in tone and detail. Some are brief: “We have patent X covering technology Y. Your product Z appears to practice our patent. Please contact us to discuss a license.” Others include detailed claim charts showing how each element of one or more patent claims reads on the accused product, along with explicit threats of litigation if the recipient does not take a license by a specified deadline.

The Declaratory Judgment Act and Federal Circuit Standards

The Declaratory Judgment Act allows parties facing an actual case or controversy to seek a judicial declaration of their rights before being sued. In the patent context, this means an accused infringer can file a declaratory judgment action asking a court to rule that they do not infringe the patent or that the patent is invalid. If the declaratory judgment plaintiff can establish subject matter jurisdiction, they get to choose the forum, which is often a significant advantage.

The Federal Circuit has held that subject matter jurisdiction exists when there is a real and immediate injury or threat of injury. In MedImmune v. Genentech, the Supreme Court held that the test is whether the facts alleged show that the controversy is definite and concrete, touching the legal relations of parties having adverse legal interests, and that the dispute is real and substantial and admits of specific relief through a decree of conclusive character.

For patent notice letters, the risk is that a letter asserting infringement and threatening litigation if the recipient does not take a license or stop making the accused product can create declaratory judgment jurisdiction. Once the letter crosses that line, the recipient can sue you in their preferred forum, potentially forcing you into expensive litigation in an inconvenient location before you are ready to file suit yourself.

How to Reduce Declaratory Judgment Risk

Patent owners who want to provide notice without triggering declaratory judgment jurisdiction must draft carefully. Avoid explicit threats of litigation. Do not set short deadlines for response or impose ultimatums. Do not send detailed infringement contentions that look like the disclosure you would provide in litigation. Do not engage in conduct that shows you are preparing to sue imminently, such as retaining litigation counsel, conducting extensive fact discovery, or filing protective claims.

Instead, frame the letter as an invitation to discuss the patent and the recipient’s products. Ask for information about the products to determine whether a license makes sense. Express a willingness to engage in good-faith discussions about licensing terms. Leave open the possibility that the products may not infringe or that the parties might reach a business arrangement that does not require resolving the infringement question.

Some patent owners send initial letters that provide very little detail, simply alerting the recipient to the existence of the patent and offering to provide more information if the recipient is interested in discussing it. This approach minimizes declaratory judgment risk but also limits the notice function and may not support willfulness findings if litigation ensues.

Trade Secret Demand Letters: Securing Evidence Before It Disappears

Trade secret misappropriation demand letters have a narrower focus than most IP enforcement letters: securing the return or destruction of confidential information and preserving evidence before it can be destroyed or further disseminated.

Federal and State Trade Secrets Frameworks

The Defend Trade Secrets Act (DTSA) created a federal civil cause of action for trade secret misappropriation, providing remedies including injunctive relief, damages, and attorney fees. Most states have adopted the Uniform Trade Secrets Act (UTSA) or similar state-law frameworks, which provide parallel remedies. Trade secrets are defined as information that derives independent economic value from not being generally known or readily ascertainable and is the subject of reasonable efforts to maintain secrecy.

Trade secret claims require showing that information qualifies as a trade secret, that it was misappropriated (acquired through improper means or disclosed or used without consent), and that the misappropriation caused harm. The challenge in trade secret disputes is often proving that the defendant actually possesses or used the trade secret, since by definition the information is not public.

Structuring Trade Secret Demand Letters

Trade secret demand letters serve several critical functions in the early stages of a dispute. First, they demand return or destruction of confidential information and impose obligations to cease use. Second, they create a preservation duty, requiring the recipient to maintain all evidence relevant to the claim, including electronic files, emails, devices, and backups. Third, they establish notice that can support claims for willful and malicious misappropriation, which can lead to exemplary damages and fee awards.

The demand letter should identify the categories of confidential information at issue with enough specificity to be meaningful without publicly disclosing the trade secrets themselves. For example, if the claim involves a customer list, the letter can describe the type of information in the list (names, contact information, purchase history, pricing, contract terms) and when the list was created or last updated, without attaching the actual list. If the claim involves technical information, describe the general nature of the technology and how the defendant would have gained access to it (such as through employment or a confidentiality agreement).

The letter must demand return or destruction of the confidential information and should request written certification that all copies have been deleted from all devices and accounts. It should also demand that the recipient preserve all evidence, including all devices, accounts, files, and communications that might contain the confidential information or evidence of its use. This preservation demand creates a duty to preserve and can support spoliation sanctions if the recipient later destroys evidence.

If the recipient is a former employee, business partner, or contractor who had authorized access to the information, the letter should identify the agreement or relationship under which access was granted and explain how the use or disclosure violates the terms of that agreement. If the recipient is a competitor or third party who obtained the information from someone who misappropriated it, the letter should explain the chain of misappropriation and why the recipient knew or should have known the information was obtained improperly.

Being Specific Without Waiving Confidentiality

The tension in trade secret demand letters is between providing enough specificity to make the demand meaningful and avoiding public disclosure of the trade secrets. Courts generally protect trade secret information disclosed in litigation through protective orders, but demand letters are not subject to such protection, and recipients sometimes publicize them.

If you are concerned about public disclosure, you can structure the letter to describe the categories of information without disclosing the actual secrets. You can also mark the letter itself as confidential and demand that the recipient not disclose it to third parties except their counsel. While this demand is not legally enforceable if the recipient chooses to ignore it, it creates some reputational risk for a recipient who publicizes a letter marked confidential.

For highly sensitive matters, some trade secret owners arrange a meeting or call with the recipient’s counsel before sending a detailed letter. The meeting allows you to explain the situation and gauge the recipient’s willingness to cooperate before committing detailed allegations to writing. If the recipient is cooperative, you may be able to negotiate return of the information and destruction of copies without ever sending a formal demand letter.

Pre-Litigation Privilege and Anti-SLAPP: The Shield and the Sword

Understanding pre-litigation privilege and anti-SLAPP statutes is essential for drafting cease-and-desist and demand letters because these doctrines determine whether your letter creates liability exposure and whether a recipient’s claims against you will survive.

Litigation Privilege Protects Properly Framed Letters

California’s litigation privilege, codified in Civil Code section 47(b), provides absolute immunity for communications made in judicial or quasi-judicial proceedings and for pre-litigation communications made in serious contemplation of litigation that are logically related to the anticipated action. The privilege bars most tort claims arising from the privileged communication, including defamation, interference with contract, interference with prospective economic relations, and unfair competition.

The privilege protects cease-and-desist and demand letters when they are written in good faith contemplation of litigation. The key requirements are that litigation is actually being seriously considered (not just threatened as an empty bluff), that the communication has some connection to the anticipated litigation, and that the content of the communication relates to the dispute.

This means a properly drafted letter that identifies the legal basis for your claim, explains why you believe you have a claim, and states that you are prepared to pursue the claim in court if necessary is likely to be privileged. The privilege does not require that you eventually file suit, only that litigation was seriously contemplated when you sent the letter. It also does not require that your claims ultimately succeed; even letters asserting claims that later turn out to be without merit are privileged as long as they were made in good faith.

Anti-SLAPP Protections

Anti-SLAPP statutes, most notably California Code of Civil Procedure section 425.16, provide a procedural mechanism to dismiss cases that target speech or petitioning activity at an early stage. The statute applies to acts “in furtherance of the person’s right of petition or free speech” in connection with a public issue or an issue under consideration in an official proceeding.

The anti-SLAPP statute applies in both directions in the context of cease-and-desist and demand letters. First, if you send a letter and the recipient sues you for defamation, interference, or other claims arising from the letter, you can bring an anti-SLAPP motion to dismiss those claims. If your letter was related to anticipated litigation, it is likely protected petitioning activity, and the claims will be dismissed unless the plaintiff can show a probability of prevailing.

Second, if you file suit after sending a letter and the defendant claims your suit is a SLAPP, they can bring an anti-SLAPP motion to dismiss your case. If your underlying claim is weak, you may face early dismissal and be ordered to pay the defendant’s attorney fees. This risk is highest when your cease-and-desist letter targeted speech on a matter of public interest (such as criticism, reporting, or commentary on your business) and your legal claims do not have strong support.

Calibrating Letter Content to Stay Within Protected Territory

To ensure your letter receives litigation privilege and anti-SLAPP protection while avoiding the risk that your subsequent lawsuit will be dismissed as a SLAPP, draft the letter to reflect serious legal analysis and good faith belief in your claims.

State the legal basis for your position clearly. Cite applicable statutes, identify the elements of your claims, and explain how the facts satisfy those elements. Attach evidence that supports your claims, such as registration certificates, contract provisions, or examples of the infringing use. Avoid inflammatory language, personal attacks, or statements that go beyond what is necessary to assert your legal rights.

Be especially careful when the dispute involves speech on a public issue, such as online reviews, journalism, activist campaigns, or employee complaints. Even if you believe the speech is false or defamatory, a cease-and-desist letter demanding removal of the speech must be carefully framed to avoid anti-SLAPP risk if you later sue. The letter should focus on factual inaccuracies that are objectively false, not on opinions or interpretations you disagree with.

If your goal is to address false speech without creating anti-SLAPP risk, consider alternatives to litigation threats. You can publish a response correcting the record, request that a platform investigate the speech for terms-of-service violations, or ask the speaker for a correction without threatening legal action. These approaches avoid the litigation privilege and anti-SLAPP framework entirely.

Ethical Constraints and Extortion Risk

Pre-litigation letters are constrained not only by civil liability risk but also by criminal law and attorney ethics rules.

The Line Between Legitimate Threats and Extortion

Extortion, in the context of pre-litigation letters, typically involves threatening criminal prosecution, regulatory action, or other nonmonetary harm to obtain a civil settlement or payment. California Penal Code sections 518 through 519 define extortion as obtaining property or other consideration from another through the wrongful use of force or fear, including fear of unlawful injury to person or property, fear of accusation of a crime, or fear of exposure to hatred, contempt, or ridicule.

The key word is “wrongful.” Threatening to file a civil lawsuit to enforce legitimate legal rights is not wrongful and therefore does not constitute extortion. Demanding payment or cessation of conduct in exchange for not filing a civil suit is standard practice in pre-litigation dispute resolution. But threatening to report someone to law enforcement, regulatory agencies, or professional licensing boards to gain leverage in a civil dispute crosses into extortion territory.

California’s ethics rules reflect this distinction. Rule of Professional Conduct 3.10 prohibits a lawyer from threatening to present criminal, administrative, or disciplinary charges to obtain an advantage in a civil dispute. The commentary makes clear that “administrative” includes bar complaints and agency enforcement actions. A lawyer can inform an opposing party of intended actions that are not prohibited by the rule, such as reporting continuing misconduct to appropriate authorities, but cannot use such threats to gain leverage in settlement negotiations.

How to Reserve Rights Without Crossing the Line

If you believe the conduct you are addressing in your cease-and-desist or demand letter might also constitute a crime or regulatory violation (such as copyright infringement that crosses into criminal territory, trademark counterfeiting, trade secret theft, or fraud), you need to structure your letter carefully.

You can state objectively what the conduct is and note that such conduct may implicate criminal statutes or regulatory enforcement, without threatening to report it. For example: “The unauthorized use of our trade secret customer list may constitute a violation of the Defend Trade Secrets Act, which provides for criminal penalties in certain circumstances.” This is informational, not a threat.

You can reserve the right to pursue all available remedies, including reporting misconduct to appropriate authorities. For example: “We reserve all rights and remedies, including reporting ongoing criminal conduct to law enforcement.” This is a general reservation of rights, not a specific threat conditioned on payment or action.

What you cannot do is condition your decision to report criminal conduct on whether the recipient pays you or complies with your demands. For example, do not write: “Pay us $100,000 by Friday, or we will report you to the district attorney” or “Stop using our mark and pay us past damages, or we will file a bar complaint against your attorney.” These are classic extortion patterns.

Evaluating Demand Amounts for Reasonableness

Another ethical constraint on pre-litigation letters is the requirement to make demands that have a reasonable basis. Demanding astronomical sums with no connection to actual damages, normal licensing fees, or statutory damages ranges can expose you to accusations of bad faith, abuse of process, or attempting to coerce settlement through fear rather than based on legitimate legal claims.

When you include a dollar demand in your letter, be prepared to justify it. If you are demanding damages based on your normal licensing fees, explain your fee structure. If you are seeking recovery of the infringer’s profits, explain how you calculated them. If you are demanding statutory damages, note the statutory range and explain why you believe the infringement falls at a particular point in that range. If you are seeking compensation for business losses, describe how those losses were caused by the wrongful conduct.

Avoid the temptation to inflate demands to create “settlement room.” While it is common practice to demand more than you expect to receive, the initial demand should still be tethered to reality. A demand that is so far above any supportable measure of damages that it appears designed purely to intimidate can undermine your credibility, make settlement more difficult, and expose you to accusations of bad faith.

The Public Relations Dimension

Pre-litigation letters increasingly have a public relations component because recipients often publicize them, especially when they believe the letter is overreaching or when the dispute involves matters of public interest.

When Letters Go Public

Letters sent to bloggers, journalists, activists, critics, or creators with large online followings are particularly likely to be publicized. The recipient may post the letter on social media, share it with industry press, or submit it to databases like Lumen that aggregate DMCA notices and other enforcement actions.

Once public, the letter becomes part of your public record. It shapes how your company is perceived by customers, competitors, potential business partners, and the media. A letter that appears aggressive, overreaching, or bullying can create a PR crisis. High-profile examples include large corporations sending cease-and-desist letters to small businesses over minor trademark overlaps, entertainment companies using DMCA notices to remove criticism or commentary, and companies threatening to sue bloggers or reviewers over negative content.

The reputational risk is highest when the letter involves speech on matters of public interest, when the recipient has limited resources and appears to be a David-versus-Goliath situation, when the legal claims in the letter are weak or questionable, or when the letter uses threatening or condescending tone.

Conducting a Pre-Send Reputational Review

Before sending any letter that might become public, conduct a reputational sanity check. Ask yourself: if this letter appears online tomorrow, how will it read? Will we look like we are protecting legitimate business interests, or will we look like we are trying to silence a critic? Will people sympathize with our position, or will we be seen as bullies?

Consider having someone outside the legal team review the letter from a business and PR perspective. If the letter would create negative publicity, ask whether the legal benefit outweighs the reputational risk. Sometimes the answer is yes: you may need to enforce your rights even if doing so creates short-term PR challenges. But sometimes the better business decision is to solve the problem in a less visible way, such as through a private licensing arrangement, a settlement that includes no admission of wrongdoing, or simply letting the matter go.

For disputes likely to attract media attention, coordinate with your communications team before sending the letter. Have a response prepared for media inquiries, brief spokespeople on the facts and legal basis, and monitor social media and news coverage. Be prepared to issue a public statement if the recipient goes public first.

Structuring Letters to Maximize Effectiveness

Effective cease-and-desist and demand letters balance assertiveness with professionalism, provide enough legal analysis to be credible without unnecessary complexity, and offer practical solutions that allow the recipient to resolve the matter without unnecessary cost or reputational harm.

Opening With Clarity and Context

Begin your letter by identifying yourself, your client if you are counsel, and the nature of the issue. For example: “I represent ABC Corp, the owner of U.S. Trademark Registration No. 5,432,123 for the mark ‘Example’ in connection with software as a service. We have become aware that your company is using the mark ‘Example Pro’ in connection with a competing software product.”

This introduction immediately establishes what rights you are asserting, who you represent, and what conduct concerns you. It allows the recipient to understand the basic issue before getting into the legal analysis.

Presenting Facts and Legal Analysis Together

The body of your letter should interweave facts with legal analysis, showing how the facts satisfy the elements of your claim. Avoid presenting a long factual narrative followed by a separate legal section; this structure makes it harder for the recipient to follow your reasoning.

For example, in a trademark letter, you might write: “ABC Corp has used the ‘Example’ mark continuously since 2015 in connection with project management software sold to enterprise customers. The mark is registered on the Principal Register with no disclaimers or restrictions. Your company launched ‘Example Pro’ in 2023, also as project management software marketed to enterprise customers through digital advertising and direct sales. The marks are visually and phonetically similar, both being built around the dominant term ‘Example.’ The goods are identical, and the channels of trade and classes of consumers overlap entirely. This creates a likelihood of confusion under the Lanham Act.”

This paragraph efficiently establishes priority, the nature of the trademark rights, the similarity of the marks, the relatedness of the goods, and the overlap in trade channels, while citing the legal standard. It is more persuasive than a letter that simply lists facts followed by a conclusory statement that “likelihood of confusion exists.”

Offering an Off-Ramp

The most effective letters offer the recipient a reasonable way to resolve the matter without litigation. This might be a licensing arrangement, a phased transition to a different mark or brand name, cessation of the specific conduct at issue while allowing other uses, or a settlement that includes payment for past use and agreement to future restrictions.

For example: “We are prepared to discuss a licensing arrangement that would allow you to continue using ‘Example Pro’ under terms that protect ABC Corp’s trademark rights and compensate ABC for any past confusion. Alternatively, if you are willing to transition to a different mark, we would work with you on a reasonable timeline that minimizes disruption to your business. We believe either of these approaches can resolve this matter without litigation.”

This language shows that you are reasonable, interested in practical solutions, and not simply trying to extract maximum value through litigation threats. It makes settlement more likely and reduces the risk that the letter will be viewed as bullying.

Setting Deadlines Without Over-Promising

Many cease-and-desist and demand letters include deadlines for response: “Please respond by March 15” or “We expect your agreement to cease use within 10 days.” Deadlines create urgency and can motivate faster response, but they also create risk. If you set a deadline and then do not follow through when it passes, you undermine your credibility. If you set an unreasonably short deadline, you may trigger declaratory judgment jurisdiction or give the recipient grounds to argue you were not serious about settlement.

Use deadlines strategically. If you need a fast response because the harm is ongoing and significant, a short deadline (7 to 14 days) is appropriate. If the matter is less urgent or you expect the recipient will need time to consult counsel and investigate, a longer deadline (21 to 30 days) shows reasonableness. If you are sending the letter primarily to establish notice and are not ready to litigate immediately, consider omitting a specific deadline and instead requesting a response “at your earliest convenience” or “within a reasonable time.”

Whatever deadline you set, be prepared to follow through. If the deadline passes with no response or an unsatisfactory response, be ready to take the next step, whether that is sending a follow-up letter, initiating settlement discussions, or filing suit.

Frequently Asked Questions

Should I send a cease-and-desist before filing a lawsuit, or can I go straight to court?

There is generally no legal requirement to send a cease-and-desist or demand letter before filing suit, with a few exceptions such as specific notice requirements in some patent marking contexts or contractual dispute resolution provisions that require pre-suit notice. However, sending a letter before suing is often strategically advantageous. It establishes a record of notice, creates an opportunity for settlement before incurring litigation costs, demonstrates that you tried to resolve the matter reasonably, and can strengthen your position on issues like willfulness or entitlement to attorney fees if you eventually do sue.

The main reasons to skip the pre-suit letter and file immediately are when you need emergency relief such as a temporary restraining order to prevent imminent harm, when you have reason to believe the defendant will destroy evidence or hide assets if given advance notice, or when the defendant has already made clear they will not cooperate and further delay would cause significant harm. In patent cases, you might also skip the letter if you want to avoid giving the defendant the opportunity to file a declaratory judgment action in their preferred forum.

Can I use a template cease-and-desist letter, or do I need custom drafting?

Template letters are useful starting points but should never be sent without customization. Generic template language that does not connect the facts of your case to the legal elements of your claim will not be persuasive and may expose you to criticism that you sent a form letter without actual analysis. More importantly, templates often include overly aggressive language or threats that may be appropriate in some contexts but create liability risk in others.

If you use a template, treat it as a structural outline and rewrite the substantive sections to match your specific facts, jurisdiction, type of intellectual property, and goals. Pay particular attention to removing any template language about remedies or threats that do not apply to your case. For significant disputes or when substantial money is at stake, having an attorney draft or review the letter is worth the cost to avoid strategic missteps.

What should I do if I receive a cease-and-desist letter that I think is wrong or overreaching?

Do not ignore it. Even an overreaching or legally unsupported letter requires a response because silence can sometimes be construed as acquiescence, and the letter establishes notice that may be relevant if litigation follows. Your response should be professional and factual, regardless of the tone of the letter you received.

Begin by analyzing whether the claims in the letter have any merit. Consult with an attorney who has expertise in the relevant area of law to evaluate the strength of the sender’s position and your defenses. If you believe you are not infringing or not violating any legal obligation, your response should explain why, providing factual and legal support for your position. If there is some overlap or potential issue but you believe the sender’s demands are excessive, your response can acknowledge the concern while proposing a more reasonable resolution.

In some cases, the strategic response to an overreaching letter is to file a declaratory judgment action asking a court to declare that you are not liable. This is most common in patent disputes and in situations where the sender’s letter creates enough uncertainty that it is interfering with your business relationships or operations.

If someone is using my copyrighted work, should I send a DMCA notice or a direct cease-and-desist?

The choice depends on your goals and the context. DMCA notices are faster and more effective when the infringing content is on a platform that responds to DMCA takedowns, such as social media, video sharing sites, or web hosting services. The notice goes to the platform, not the infringer, and results in quick removal without negotiation. Use DMCA when you need immediate removal, when the infringer is anonymous or hard to identify, or when the use is so clearly infringing that there is no point in discussion.

Direct cease-and-desist letters to the infringer are better when you want to preserve a business relationship, when there may be an opportunity to license the use rather than simply stop it, when you want to seek damages or other remedies beyond just removal, or when the infringement is not on a platform that responds to DMCA notices. Direct letters also avoid the public database publication risk that comes with DMCA notices.

In many cases, the best approach is both: send a DMCA notice to get the immediate harm stopped, then follow up with a direct letter to address broader issues like ongoing compliance, past damages, and future licensing.

How specific do I need to be about damages in a demand letter?

Specificity about damages depends on what information you have and what leverage you are trying to create. If you have clear evidence of actual damages or a well-established licensing fee structure, being specific strengthens your position because it shows you have done your homework and the demand is based on real harm, not an arbitrary number. For example, if you normally license photographs at $500 per use and the infringer used five of your photographs, demanding $2,500 plus additional compensation for not obtaining advance permission is specific and justifiable.

If you do not have enough information to calculate damages precisely but you know harm occurred, you can describe the basis for damages without stating an exact number. For example: “Based on industry-standard licensing fees for similar uses and the duration and scope of your unauthorized use, we estimate damages in the range of $10,000 to $25,000, subject to additional investigation and discovery regarding the extent of use and revenue generated.”

Avoid stating a specific demand unless you can justify it. A demand that appears to be plucked from thin air makes you look unserious and makes settlement harder because the recipient will assume your real bottom line is far lower.

What happens if the person I send a cease-and-desist letter to sues me for sending it?

This is the anti-SLAPP and litigation privilege issue. If you are in California or another state with strong anti-SLAPP protections and your letter was sent in good faith in contemplation of litigation over a legitimate legal dispute, you will likely be able to dismiss the suit quickly through an anti-SLAPP motion and may recover your attorney fees. The litigation privilege protects pre-litigation communications from most tort claims.

However, if your letter made false statements of fact that you knew were false, if you sent it for an improper purpose such as to harass or extort, or if the letter threatened criminal or regulatory action to gain a civil advantage, the protections may not apply. These situations are rare when the letter is drafted by competent counsel based on actual facts, but they can occur if someone sends a letter without proper investigation or legal analysis.

The best protection against being sued for sending a cease-and-desist or demand letter is to ensure the letter is factually accurate, based on a good faith legal analysis, focused on protecting your legitimate rights, and free of improper threats or demands.