A cease-and-desist letter, commonly called a lawyer's letter in practice, is a written notice sent by a trademark rights holder or its agent to an alleged infringer, setting out the trademark ownership, the alleged infringing acts, the legal basis, and demands such as cessation and damages. It is not a statutory procedure and creates no coercive force, but it has unique intelligence and negotiation value in the enforcement system.
Functional Positioning
- A low-cost attempt to stop the infringement: for operators who used the mark unknowingly or engaged in mild free-riding, a well-drafted letter often leads to voluntary takedown, renaming, or rectification, saving administrative and litigation costs;
- Fixing the subjective state: service of the letter proves the other side knew of the right and the infringement allegation; continued infringement thereafter constitutes typical evidence of bad faith for punitive damages under Article 63 and also affects fault findings in administrative penalties;
- Opening negotiations: providing a formal starting point for trademark licensing, coexistence agreements, or settlement on damages;
- Limitation-period and procedural significance: a clear assertion of rights supports a claim of interruption of the statute of limitations.
Essential Contents
A well-drafted trademark cease-and-desist letter should include: the rights holder's identity and trademark registration information (registration number, class, approved goods); the specific alleged facts (goods, links, dates, channels); the infringement comparison and legal basis (Articles 57, 63, etc.); clear demands (stop manufacture and sale, delete links, destroy inventory, negotiate damages) with a reasonable deadline; and a reservation of further legal action.
Risks and Boundaries
- A letter whose allegations are unfounded or exceeds the scope of the rights may constitute commercial disparagement or unfair competition that disrupts the market, and invite a counterclaim;
- The recipient may file a declaratory action of non-infringement: if the rights holder, after sending the letter, neglects to sue, the warned party may, after a demand, ask the court to confirm that its conduct does not infringe—seizing procedural initiative;
- Sending a letter to an organized counterfeiting ring amounts to tipping them off and may lead to evidence being moved; in major cases, evidence collection and preservation should be completed before sending.
Applicable Scenarios and Alternatives
A warning letter suits: mild infringement with clear facts at an early stage where the other side's subjective state is unknown; low-cost testing of the other side's attitude and opening settlement talks; and cases where a starting point of bad faith needs to be fixed for punitive damages. It does not suit: large-scale cases where the infringement chain has not been mapped and evidence has not been fixed (preserve evidence first); professional counterfeiting rings (go straight to administrative or criminal channels); or unstable rights (where the mark may face non-use cancellation or invalidation, a letter only reminds the other side to counterattack). Compared with platform complaints and administrative enforcement, a warning letter has no coercive force, but it is flexible, cheap, and leaves a record—often the first move of a combined strategy.
Service and Record-Keeping
Send by EMS with the document name noted on the waybill and keep the signature record; also serve through multiple channels such as platform internal messages and email. Archiving proof of service and the letter draft is foundational evidence for later claims of bad faith and for calibrating the damages range.
Details of how these concepts apply in practice vary; before proceeding, you may consult a filed trademark agent on MyTMBee for case-specific analysis.