What is an Infringement Letter?

Lori Spencer

An infringement letter, sometimes called a "cease and desist" letter, is typically the first formal step an aggrieved party takes to demand that another party refrain from violating the law or another's legal rights. This strongly worded letter puts the offending party on notice that if it does not cease the infringing activity immediately, legal action might be taken. Although an infringement letter often is drafted by an attorney, this is not always necessary.

Infringement letters, or cease and desist letters, are usually drafted by attorneys.
Infringement letters, or cease and desist letters, are usually drafted by attorneys.

As an example of how this type of letter might be used, if company A violated the copyright, patent or trademark rights of company B, an infringement letter could be sent to company A notifying it that the infringing product or service must be removed from the market right away. In another scenario, an individual might receive an infringement letter advising him or her that a song or movie file downloaded from the Internet was an infringement of the legal owner's copyright. The letter would then demand that the activity stop now — cease — and that the user refrain from doing it again in the future — desist.

An infringement letter is frequently sent to a company violating a trademark.
An infringement letter is frequently sent to a company violating a trademark.

Infringement notices should be detailed, listing each specific known act of infringement, including specific information about the alleged violations. An example might be a cease-and-desist letter sent from a copyright holder to someone who used the copyrighted material on a website. The letter would describe each instance of copyright infringement, including the Internet address where each instance appeared and the date on which the material was on the website.

In many cases, the infringement letter is sufficient to convince an offending party to halt the alleged infringing activity, so the matter does not proceed to actual litigation. If the offending party ignores this written warning letter, however, the next notice received might be a court summons or subpoena. Most individuals and corporations wish to avoid the ordeal of a long and costly lawsuit, so offers frequently are made to settle the problem before it ever gets to the courtroom.

Laws vary on notice requirements from one jurisdiction or country to another. In some types of cases, the law requires an aggrieved party to send a written notice of infringement; in other cases, formal written notice might not be required. In some places, a patent owner might not receive damages in an infringement lawsuit unless it can be proven that the alleged infringer had proper notice of the patent.

It is a good idea for an attorney to review an infringement letter before it is sent, because some unexpected complications might arise. Even if there is no intention of ever filing a lawsuit, the accused offender might challenge a claim of infringement in court. The alleged infringer can ask the court for a declaratory judgment stating that no infringement ever occurred. It is also possible that the alleged infringer has the legal right to use the trademark, patent or work and could make its own claim of infringement.

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