Cease and desist

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A cease and desist letter is a document sent to an individual or business to stop purportedly illegal activity ("cease") and not to restart it ("desist"). The letter may warn that if the recipient does not discontinue specified conduct, or take certain actions, by deadlines set in the letter, that party may be sued. [1] [2] When issued by a public authority, a cease and desist letter, being "a warning of impending judicial enforcement", [3] is most appropriately called a "cease and desist order".

Contents

Although cease and desist letters are not exclusively used in the area of intellectual property, such letters "are frequently utilized in disputes concerning intellectual property and represent an important feature of the intellectual property law landscape". [2] The holder of an intellectual property right such as a copyrighted work, a trademark, or a patent, may send the cease and desist letter to inform a third party "of the right holders' rights, identity, and intentions to enforce the rights". The letter may merely contain a licensing offer or may be an explicit threat of a lawsuit. A cease and desist letter often triggers licensing negotiations, and is a frequent first step towards litigation. [2]

Intellectual property (IP) is a category of property that includes intangible creations of the human intellect. The most prominent types of intellectual property are copyrights, patents, and trademarks, though many other types also exist, and some countries recognize more types than others. It was not until the 19th century that the term "intellectual property" began to be used, and not until the late 20th century that it became commonplace in the majority of the world.

Copyright is the exclusive and assignable legal right, given to the creator of a literary or artistic work, to reproduce the work, usually for a limited time. This right is not absolute but subject to limitations such as fair use. Copyright only protects only the original expression of ideas, and not the underlying ideas themselves.

Trademark Recognizable sign, design or expression which identifies products or services

A trademark is a type of intellectual property consisting of a recognizable sign, design, or expression which identifies products or services of a particular source from those of others, although trademarks used to identify services are usually called service marks. The trademark owner can be an individual, business organization, or any legal entity. A trademark may be located on a package, a label, a voucher, or on the product itself. For the sake of corporate identity, trademarks are often displayed on company buildings. It is legally recognized as a type of intellectual property.

Receiving numerous cease and desist letters may be very costly for the recipient. Each claim in the letters must be evaluated, and it should be decided whether to respond to the letters, "whether or not to obtain an attorney's opinion letter, prepare for a lawsuit, and perhaps initiate [in case of letters regarding a potential patent infringement] a search for alternatives and the development of design-around technologies". [2]

Cease and desist letters are sometimes used to intimidate recipients and can be "an effective tool used by corporations to chill the critical speech of gripe sites operators". A company owning a trademark may send such letter to a gripe site operator alleging a trademark infringement, although the actual use of the trademark by the gripe site operator may fall under a fair use exception (in compliance with, in the U.S., the protection of free speech under the First Amendment). [4]

Intimidation is intentional behavior that "would cause a person of ordinary sensibilities" to fear injury or harm. It is not necessary to prove that the behavior was so violent as to cause mean terror or that the victim was actually frightened.

Trademark infringement is a violation of the exclusive rights attached to a trademark without the authorization of the trademark owner or any licensees. Infringement may occur when one party, the "infringer", uses a trademark which is identical or confusingly similar to a trademark owned by another party, in relation to products or services which are identical or similar to the products or services which the registration covers. An owner of a trademark may commence civil legal proceedings against a party which infringes its registered trademark. In the United States, the Trademark Counterfeiting Act of 1984 criminalized the intentional trade in counterfeit goods and services.

In the United States, trademark law includes a fair use defense, sometimes called "trademark fair use" to distinguish it from the better-known fair use doctrine in copyright. Fair use of trademarks is more limited than that which exists in the context of copyright.

See also

An Abmahnung is a formal request by one person to another person to forthwith stop a certain behaviour.

<i>Clameur de haro</i> ancient legal injunction of restraint still enforceable in Jersey and Guernsey

The Clameur de Haro is an ancient legal injunction of restraint employed by a person who believes they are being wronged by another at that moment. It survives as a fully enforceable law to this day in the legal systems of Jersey and Guernsey, and is used, albeit infrequently, for matters affecting land.

A demand letter, or letter of demand, is a letter stating a legal claim which makes a demand for restitution or performance of some obligation, owing to the recipients' alleged breach of contract, or for a legal wrong. Although demand letters are not legally required they are frequently used, especially in contract law, tort law, and commercial law cases. For example, if one anticipates a breach, it is advantageous to send a demand letter asserting that the other side appears to be in breach and requesting assurances of performances. Demand letters that are not responded to may constitute admissions by silence. Also, a demand letter will often generate a denial letter stating the basis for rejecting your side's claim, and is sometimes a good indication of what defenses will be raised if a suit is brought later.

Related Research Articles

Lumen, formerly Chilling Effects, is a collaborative archive created by Wendy Seltzer and founded along with several law school clinics and the Electronic Frontier Foundation to protect lawful online activity from legal threats. Lumen is a "project" of the Berkman Klein Center. Its website, Chilling Effects Clearinghouse, allows recipients of cease-and-desist notices to submit them to the site and receive information about their legal rights and responsibilities.

A declaratory judgment, also called a declaration, is the legal determination of a court that resolves legal uncertainty for the litigants. It is a form of legally binding preventive adjudication by which a party involved in an actual or possible legal matter can ask a court to conclusively rule on and affirm the rights, duties, or obligations of one or more parties in a civil dispute. The declaratory judgment is generally considered a statutory remedy and not an equitable remedy in the United States, and is thus not subject to equitable requirements, though there are analogies that can be found in the remedies granted by courts of equity. A declaratory judgment does not by itself order any action by a party, or imply damages or an injunction, although it may be accompanied by one or more other remedies.

Intellectual property rights (IPRs) have been acknowledged and protected in the People's Republic of China since the 1980s. The People's Republic of China has acceded to the major international conventions on protection of rights to intellectual property. Domestically, protection of intellectual property law has also been established by government legislation, administrative regulations, and decrees in the areas of trademark, copyright, and patent. This has led to the creation of a comprehensive legal framework to protect both local and foreign intellectual property. Despite this, copyright violations are common in the PRC, The American Chamber of Commerce in China surveyed over 500 of its members doing business in China regarding IPR for its 2016 China Business Climate Survey Report, and found that IPR enforcement is improving, but significant challenges still remain. The results show that the laws in place exceed their actual enforcement, with patent protection receiving the highest approval rate, while protection of trade secrets lags far behind.

DVD Decrypter

DVD Decrypter is a deprecated software application for Microsoft Windows that can create backup disk images of the DVD-Video structure of DVDs. While it was still supported, it could be used to make a copy of any DVD protected with Content Scrambling System (CSS). The program can also record images to disc — functionality that the author has now incorporated into a separate product called ImgBurn. The software also allows a copy of a region-specific DVD to be made region free. It also removes Macrovision content protection, CSS, region codes, and user operation prohibition, but cannot copy DVDs protected with newer systems such as XProtect.

Proposed directive on criminal measures aimed at ensuring the enforcement of intellectual property rights directive

The European Union (EU) directive on criminal measures aimed at ensuring the enforcement of intellectual property rights (2005/0127/COD) was a proposal from the European Commission for a directive aimed "to supplement Directive 2004/48/EC of 29 April 2004 on the enforcement of intellectual property rights ". The directive was proposed on July 12, 2005 by the Commission of the European Communities.

FedEx furniture is the artistic creation of computer programmer and creative consumer Jose Avila, III. In June, 2005, Avila created a website, Fedexfurniture.com, to display photographs of a couch, bed, dining room table, and desk that he had constructed out of cartons obtained from overnight shipping giant FedEx Corporation (FedEx). FedEx attorneys used the takedown provisions of the Digital Millennium Copyright Act (DMCA) to force Avila's ISP to take the site offline, accusing Avila of infringing on FedEx's copyrights and trademarks, breaching his contract with FedEx by using the cartons for purposes other than shipping, and potentially misleading consumers into believing that FedEx approved or endorsed Avila's actions. Among attorneys and activist organizations concerned with the exercise of First Amendment rights on the Internet, FedEx's actions raised questions about the constitutionality of using the DMCA to censor unwanted speech. The Fedexfurniture.com website is down as of July 8th, 2017.

ScienTOMogy organization

ScienTOMogy was a New Zealand-based parody site lampooning actor Tom Cruise's involvement with Scientology. Initially hosted at the domain name scientomogy.info, the site was created in 2005 in response to the extensive media publicity surrounding Cruise's appearances on The Oprah Winfrey Show and The Today Show.

Statutory damages are a damage award in civil law, in which the amount awarded is stipulated within the statute rather than being calculated based on the degree of harm to the plaintiff. Lawmakers will provide for statutory damages for acts in which it is difficult to determine a precise value of the loss suffered by the victim. This could be because calculation of a value is impractical, such as in intellectual property cases where the volume of the infringement cannot be ascertained. It could also be because the nature of the injury is subjective, such as in cases of a violation of a person's rights. The award might serve not only as compensation but also for deterrence, and it is more likely to succeed in serving a deterrence function when the potential defendants are relatively sophisticated parties. Other functions that can be served by statutory damages include reducing administrative costs and clarifying the consequences of violating the law.

<i>Online Policy Group v. Diebold, Inc.</i>

Online Policy Group v. Diebold, Inc., 337 F. Supp. 2d 1195, was a lawsuit involving an archive of Diebold's internal company e-mails and Diebold's contested copyright claims over them. The Electronic Frontier Foundation and the Stanford Cyberlaw Clinic provided pro bono legal support for the non-profit ISP and the Swarthmore College students, respectively.

The following outline is provided as an overview of and topical guide to intellectual property:

The Prioritizing Resources and Organization for Intellectual Property Act of 2008 is a United States law that increases both civil and criminal penalties for trademark, patent and copyright infringement. The law also establishes a new executive branch office, the Office of the United States Intellectual Property Enforcement Representative (USIPER).

A legal threat is a statement by a party that it intends to take legal action on another party, generally accompanied by a demand that the other party take an action demanded by the first party or refrain from taking or continuing actions objected to by the demanding party.

The WIPO Copyright and Performances and Phonograms Treaties Implementation Act, is a part of the Digital Millennium Copyright Act (DMCA), a 1998 U.S. law. It has two major portions, Section 102, which implements the requirements of the WIPO Copyright Treaty, and Section 103, which arguably provides additional protection against the circumvention of copy prevention systems and prohibits the removal of copyright management information.

Copyright infringement Intellectual property violation

Copyright infringement is the use of works protected by copyright law without permission for a usage where such permission is required, thereby infringing certain exclusive rights granted to the copyright holder, such as the right to reproduce, distribute, display or perform the protected work, or to make derivative works. The copyright holder is typically the work's creator, or a publisher or other business to whom copyright has been assigned. Copyright holders routinely invoke legal and technological measures to prevent and penalize copyright infringement.

Notice and take down is a process operated by online hosts in response to court orders or allegations that content is illegal. Content is removed by the host following notice. Notice and take down is widely operated in relation to copyright infringement, as well as for libel and other illegal content. In United States and European Union law, notice and takedown is mandated as part of limited liability, or safe harbour, provisions for online hosts. As a condition for limited liability online hosts must expeditiously remove or disable access to content they host when they are notified of the alleged illegality.

Typefaces, fonts, and their glyphs raise intellectual property considerations in copyright, trademark, design patent, and related laws. The copyright status of a typeface—and any font file that describes it digitally—varies between jurisdictions. In the United States, the shapes of typefaces are not eligible for copyright, though the shapes may be protected by design patent. Typefaces can be protected in other countries, including the UK, Germany, and France, by industrial design protections that are similar to copyright or design patent in that they protect the abstract shapes. Additionally, in the US and in some other countries, computer fonts—the digital instantiation of the shapes as vector outlines—may be protected by copyright on the computer code that produces them. The name of a typeface may also be protected as a trademark.

PROTECT IP Act proposed copyright law

The PROTECT IP Act was a proposed law with the stated goal of giving the US government and copyright holders additional tools to curb access to "rogue websites dedicated to the sale of infringing or counterfeit goods", especially those registered outside the U.S. The bill was introduced on May 12, 2011, by Senator Patrick Leahy (D-Vt.) and 11 bipartisan co-sponsors. The Congressional Budget Office estimated that implementation of the bill would cost the federal government $47 million through 2016, to cover enforcement costs and the hiring and training of 22 new special agents and 26 support staff. The Senate Judiciary Committee passed the bill, but Senator Ron Wyden (D-Ore.) placed a hold on it.

NeighborCity is a residential real estate information and service company that rates real-estate agents in the United States, offering a way for buyers and sellers of homes to compare and evaluate agents. It is based in San Francisco.

References

  1. Gold, Michael Evan. An Introduction to Labor Law , p. 17 (Cornell University Press, 1998).
  2. 1 2 3 4 Trimble, Marketa (2010). "Setting Foot on Enemy Ground: Cease-and-Desist Letters, DMCA Notifications and Personal Jurisdiction in Declaratory Judgment Actions". IDEA: The Intellectual Property Law Review . 50 (4): 777–830. Retrieved 2 November 2013.
  3. Lorch, Robert Stuart (1980). Democratic Process and Administrative Law. Wayne State University Press. p. 158. ISBN   9780814315132.
  4. Braswell, Rachael (2007). "Consumer Gripe Sites, Intellectual Property Law, and the Use of Cease-and-Desist Letters to Chill Protected Speech on the Internet". Fordham Intell. Prop. Media & Ent. L.J. 17 (4): 1241–1287. Retrieved 2 November 2013.

The Electronic Frontier Foundation (EFF) is an international non-profit digital rights group based in San Francisco, California. The foundation was formed in July 1990 by John Gilmore, John Perry Barlow and Mitch Kapor to promote Internet civil liberties.

<i>Linux Journal</i> magazine

Linux Journal is a monthly technology magazine published by Linux Journal, LLC.. It focuses specifically on Linux, allowing the content to be a highly specialized source of information for open source enthusiasts.