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China cease and desist letter

Cease and Desist Letter

A cease and desist letter, also known as a C&D letter, is a legal letter that instructs a person, group, or organization to discontinue an action or program of actions that have been deemed harmful to another person, group, or organization under China law. To cease and desist literally means to stop. Generally, a letter is issued by a legal authority. When an individual must send one, it is usually worded by a China lawyer.A simple Cease and Desist order will identify the following basic elements:

  • Recipient: individual or business who needs to stop the harassment, defamation, unreasonable debt collection, or copyright/trademark infringement
  • Sender: individual or business requesting the recipient to stop their unlawful behavior
  • Unlawful Behavior: detailed description of the behavior and why it is unlawful
  • Legal Action: a lawsuit will be initiated if the behavior does not stop or continues
  • Date: when the letter is being sent to the recipient

A Cease and Desist Letter is also called a Demand Letter, Violation Letter or Takedown Letter.

As a reference, a Cease and Desist Letter can be used in a number of situations, including:

  • Copyright Infringement: An individual or entity that suspects someone else is using their copyrighted works without permission may take the first step to protecting their works by sending a cease and desist letter. The letter should contain details about the copyrighted work, proof of ownership of the copyright, and an account of how the copyright has been infringed upon.
  • Trademark Infringement: While written works are assumed copyrighted when written, a trademark must be registered with the government, making it easier to enforce. A cease and desist letter should include a description of the logo or design that has been infringed upon, the date used, and what actions the recipient should take.
  • Patent Infringement
  • Debt Collection: A cease and desist letter may be used to stop harassing debt collection tactics, and should include the dates and methods of contact, and why the collection efforts are burdensome. The letter should also contain the account number, amount of debt, and documentation that may help stop the harassment.
  • Harassment: A letter demanding that an individual stop harassing activities should include the dates of the harassment, a description of the unwanted actions, and the date on which further action will be taken if the harassment does not stop.
  • Defamation of Character
  • Libel
  • Slander
  • Breach of Contract
  • Violation of Non-Compete Agreement

When Do You Need A Cease and Desist Letter

These letters are commonly used when an individual or business wants to stop another person or organization from violating their legal rights.We provide free simple Cease and Desist Letter templates. A cease and desist form can also be used to stop someone from using or sharing your trade secrets.

If you are a small business owner, band, or artist looking to enforce your IP rights or respond to infringement allegations in a cease and desist letter you have received, you DO NOT want to try and enforce your rights or respond without obtaining legal advice, or even worse, use a “one size fits all” C&D letter from an online legal documents website.

Cease and desist letters are used for many purposes, but basically they all say the same thing: stop doing what you are doing. The most common acts that prompt the use of such a demand letter include:

1. Cease Trademark Infringement Letter

A trademark is usually a name, word, phrase, logo, symbol, design, or image that helps people identify a product or service with a particular person or organization. Unlike a copyrighted work that automatically gets protected once written, you must take steps to register a trademark with the China patent and Trademark Office if you want similar legal rights. However, because there is a mandatory application process, the owner of the rights to a trademark are well documented, making trademarks more easily enforceable.

Our free template Letter for Trademark Infringement allows you to explain why it confuses people when someone else uses a similar or identical trademark and demand that the infringer stop using your trademark. Be sure to include the following helpful information:

  • date trademark was first used
  • trademark registration number
  • trademark registration date
  • geographic areas where the trademark is used

A cease and desist letter can be an effective tool and the last line of defense for protecting your business’ copyright, trademark, patentor other intellectual property (before resorting to more costly legal options). In short, a cease and desist letter is a formal request for another company or individual to stop an action that you deem to be an infringement of your IP.

2. Cease Debt Collection Letter

You should always pay your debts, but a debt collection agency does not have the right to harass you with numerous telephone calls and messages. Relevant China laws protects you, your family, or your friends from being repeatedly contacted and harassed by these agencies.The law recognizes that abusive debt collection practices contribute to personal bankruptcies, marital instability, the loss of jobs, and the invasion of individual privacy. You may need to send this document if one of the following unfair situations occurs:

  • Inconvenient calls before 8:00 am or after 9:00 pm
  • Contacted while at work after you have told them calls are not allowed
  • Contacting you directly even though you have an attorney representing you
  • Discussing your debt with anyone besides you, your spouse, or your attorney
  • Use of obscene or profane language to intimidate you
  • Threats to arrest you or take your property without a legal basis
  • Garnishment of your federal benefits like Social Security, Veteran, or Military Benefits

Sending a Cease and Desist Letter does not forgive your debt, but it should stop the debt collection agency from calling you. The debt collector can still sue you to collect the money owed.

If the debt collection agency does not stop within 15 days of receiving the letter,  you should submit a complaint to the China Consumer Protection Committee or the China NDRC. Make a copy of your Cease and Desist Letter for yourself before sending the original by certified mail. Pay for a “return receipt” so you can prove that the debt collector received your letter.

3. Cease Defamation Letter

A letter can also be used to stop another person or company from making false statements that harm or damage someone’s reputation or business. Some states further recognize two kinds of defamation — written false statements (“libel”) or spoken false statements (“slander”). A defamation claim must show four things:

  • a false statement claiming to be fact
  • publication or communication to at least one third party
  • negligence by the publisher in publishing the false statement
  • damages or harm to the subject of the false statement

False statements that allege that someone (1) committed a crime, (2) has a loathsome of contagious disease, (3) was unchaste or engaged in sexual misconduct, or (4) did something unfit for their business, trade, or profession are considered defamation per se, and you would not need to prove any damages or harm. Defamation requires that false statements be “published” or made known to a third person, either verbally or in writing.

4. Cease Copyright Infringement Letter

China copyright laws encourage and protect “original works of authorship.” As soon as the “expression of an idea” is written, the work is copyrighted and the owner has the exclusive right to use and display this original copyrighted work, including selling copies, creating derivative works, and displaying the work publicly. An original work can also be formally registered with the China Copyright Office, creating a public record of the copyright. Anyone wishing to use all or a portion of this copyrighted work must first get permission from the owner.

In order to file an infringement lawsuit, an owner must first register the copyrighted work with the China Copyright Office.

The Consequences of Not Using A Cease and Desist Letter

Without a Cease and Desist Letter, the unlawful behavior may continue and eventually damage an individual’s or a company’s reputation or economic well being. Sending this letter will put the infringer or harasser on notice of your claims and cut off any defense they may have based on lack of knowledge. It also shows them that you are serious about the claim and closely monitoring the situation. And it opens the door for discussion and negotiation to solve the conflict out of court, potentially saving you lots of time and money.

Here are just a few of the preventable consequences that can be prevented with a Cease and Desist Letter:

1.Lost opportunity cost: Reputation and character temporarily or permanently damaged and Customers confused by who is the original creator

2.Loss of money: Damage to your personal reputation may affect your business and Cost of lawyer fees to follow up with a lawsuit, and Public consumers mistakenly purchase someone else’s product

3.Mental anguish: Repeated phone calls from harassing person or debt collecting agency, and Fear of personal safety or privacy of financial situation

How to Write A Cease and Desist Letter

A simple Cease and Desist should address the following:

  • Who has been engaging in the unlawful activity
  • What behavior is considered unlawful (i.e. harassing, false statements, IP infringement)
  • When the unlawful behavior began
  • Why the behavior is unlawful
  • How the sender has been harmed or damaged by the behavior

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.

 

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