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NSW Intellectual Property Law - Is a Cease and Desist Letter Mandatory?

Discussion in 'Intellectual Property Law Forum' started by striker, 12 November 2015.

  1. striker

    striker Member

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    Hello,

    I have a general question please.

    I understand that companies & legal firms send Cease & Desist letters if they believe IP has been infringed on or images used without permission etc., but are these letters mandatory before legal action can take place?

    I mean, can a person / business be sued or be taken to court without any Cease & Desist letter or other formal letter from the copy-write holder asking to stop the infringement?

    I know most companies do send out one as the start of the legal process but what happens if no cease and desist letter is sent? Can someone be successfully sued without the chance to cease the infringement or remove any offending images via a cease and desist letter under Intellectual Property Law?

    This question is purely from a copy-write and legal perspective.

    I hope someone can answer.

    Thanks
     
  2. Sophea

    Sophea Well-Known Member

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    Hi Striker,

    I don't know that not serving a cease and desist letter would preclude you from bringing legal action, however if they other party was innocently using the IP, and stopped as soon as the legal proceedings were instituted then the court may not award the plaintiffs full costs because they didn't give the defendant an opportunity to desist from the conduct they were unknowingly committing. I would say it is definitely best practice to issue a cease and desist letter first.
     
  3. Tim W

    Tim W Lawyer

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    Is it possible in theory to begin, say, a breach of copyright proceeding without one? Yes.

    Is doing so proper professional conduct and good practice for a lawyer in real life? No.
     
  4. striker

    striker Member

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    Thank you for your replies. I have been involved in a situation where a legal firm is threatening legal action against us unless we pay ridiculous licensing fees for unknowingly using an image on a website. The image was removed as soon as it was made aware to us, but they are still pursuing us with legal action (quite heavily in fact)

    I just wanted to know if a "Cease and Desist" letter is a compulsory part of the legal process or just a standard practice.

    I can see now that good lawyers & businesses should send out one that can be used in court if the IP was not removed after the letter was sent, but is not a compulsory document before court proceedings can occur.

    Does anyone know if this bullying behaviour is common place (ie threaten being sued for a licensed image on a website) and are they successful in suing businesses if going to court without a cease & desist letter?

    Thank you
     

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