The cease and desist letter, drafted for you

Five different letters wearing one name

“Cease and desist” is not a type of legal document. It is a demand letter, and almost everything about what it may safely say depends on which right you are enforcing. A letter about a neighbouring business’s abusive messages, a letter about a review that has cost you contracts, a letter about your brochure copied wholesale, and a letter about a competitor’s logo, and a letter about personal details published without consent are five different letters. Pick the wrong ground and the letter either does nothing, or does something you did not intend.

The trade mark letter that can be turned back on you

This is the one nobody warns you about. Under s.21A of the Trade Marks Act 1994, a threat to bring infringement proceedings is itself actionable by any person aggrieved by the threat, not only the person you wrote to. Under s.21C they can ask the court for a declaration that the threat was unjustified, an injunction against continuing it, and damages for the loss it caused them.

What takes a letter outside that is the act you allege, not how carefully you word it. A threat is not actionable where the infringement alleged is one of the primary acts: applying the sign to goods or their packaging, importing goods carrying it for disposal, or supplying services under it. In practice those are the acts of the manufacturer, the importer and the business actually trading under the name. So the letter aimed at the source is the safe one.

Aim it at their stockist, their retailer, their marketplace or their customer, and what you are complaining of is a secondary act, and the exception does not reach it. That is precisely the letter commercial instinct says to send — go after the shops carrying the knock-off — and it is the one that gets sued on.

Two defences soften this, and both reward doing the work before writing. Under s.21C it is a defence that the act complained of was an infringement. Being right is itself protection. And where you have taken reasonable steps and still cannot identify anyone doing a primary act, you may go to a secondary party provided you tell them what steps you took, at or before the time of the threat. Skipping that notification is what turns a reasonable letter into an actionable one.

Where you simply need to make contact, s.21B allows a “permitted communication”: made for a permitted purpose — giving notice that the mark exists, finding out whether or by whom it has been infringed by one of those primary acts, or giving notice of a right where the other side’s awareness of it matters to prospective proceedings — carrying only the information necessary for that purpose, and only what you reasonably believe to be true. It protects an implied threat. It does not protect an express one. “We will sue you” is actionable however carefully the rest of the letter is worded.

The same regime runs across patents, registered designs, design right and the EU and Community rights. It is the reason a strongly-worded letter about a registered right is a worse letter, not a better one.

It is also why the tool will not assert a registered trade mark unless you give it a registration number. Claiming a right you do not hold is the shortest route to an actionable threat, and an unregistered name is a passing-off question at common law rather than a registered-mark infringement one.

Copyright is the ground where you can write freely

The unjustified-threats rules do not extend to copyright. If someone has lifted your photographs, your website copy, your drawings or your code, you can write to whoever you need to — the copier, the host, the marketplace — and say plainly that you will sue. That is why the copyright letter and the trade mark letter cannot be the same letter, even when the offending page carries both your words and your logo. The tool separates them; most templates do not.

Harassment: the letter has to name a course of conduct

In England and Wales, s.3 of the Protection from Harassment Act 1997 gives a civil claim, with damages that expressly cover the anxiety caused as well as financial loss, and an injunction. Breach of that injunction without reasonable excuse is a criminal offence carrying up to five years on indictment.

The threshold is what to get right before writing. Harassment requires a course of conduct: conduct on at least two occasions against the same person, or one occasion each where two or more people are targeted. Conduct includes speech. And the victim must be an individual: a company cannot be harassed under the Act, however sustained the campaign against it.

So the letter that works sets out the occasions — dated, specific, at least two — rather than asserting a pattern in general terms. A letter describing a single incident is asking for a remedy the statute does not provide for it.

Defamation: a threshold, and a short clock

Since s.1 of the Defamation Act 2013, a statement is not defamatory in England and Wales unless its publication has caused, or is likely to cause, serious harm to reputation. If you are complaining as a business trading for profit, that means serious financial loss — contracts you can point at, not wounded pride. A letter that cannot identify the loss is a letter announcing you have no claim.

The clock is short too. One year from the cause of action accruing, under s.4A of the Limitation Act 1980, against six years for most contract and tort claims. Defamation is the ground where waiting to see whether it blows over quietly runs the claim out.

The fifth ground is not about your rights at all

Where the problem is personal information published about you or someone in your business, the demand is not defamation or copyright but the right to erasure under Article 17 of the UK GDPR. It is a different argument to a different recipient, usually the controller or the platform rather than whoever posted it, and it carries its own exceptions: erasure does not run where the processing is necessary for freedom of expression, for legal compliance, or for establishing or defending legal claims. That last exception is why firing off a combative letter first and a deletion demand second can defeat your own request.

If one has landed on your desk instead

The same rules run in reverse, and that is a separate document. A demand asserting a registered trade mark without giving a registration number is asserting a right the sender may not hold; a demand threatening infringement proceedings over a secondary act may be an actionable threat under s.21A. Almost Legal drafts the reply as its own tool, answering only on the facts you give it, and flagging any unjustified threat in the letter you received.

What the letter actually contains

1. The ground, named once. The right relied on and the provision behind it, stated plainly and not repeated.
2. The conduct, evidenced. Dates, occasions, URLs, product listings — the specifics the ground needs, which for harassment means at least two occasions and for defamation means the loss.
3. The demand. What must stop, what must come down or be handed over, and by when.
4. The consequence — worded to fit the ground, which for a registered right means worded to stay outside s.21A.

Almost Legal is AI drafting software grounded in UK law, not a law firm — you review and send everything it produces. General information on this page is not legal advice for your situation.