Cease and desist orders are used in various contexts; including:
- copyright Infringement;
- trademark Infringement;
- breach of contract; and
This article will explain what cease and desist orders are, when parties and courts use them and how they compare to cease and desist letters.
What Are Cease and Desist Orders?
Cease and desist orders act like temporary injunctions before trial. This means they order a party to cease specific actions until the matter can be heard by a court. A court may grant a permanent injunction after the trial to stop someone from doing something permanently.
For example, if an author is about to publish a book, but it is on trial for alleged copyright infringement, the court might issue a cease and desist order to stop the author from publishing the book until the trial is finished. Depending on the trial outcome, the court may then grant a permanent injunction or allow the author to publish.
When are Cease and Desist Orders Used?
The court issues cease and desist orders only in special circumstances. This is because they require the court to make an order before a case goes to trial. The court has to consider the potential harm to both parties before issuing the order.
When making this decision, the court needs to assess:
- the strength of the parties’ respective cases;
- the harm to the person seeking the order if it refused relief compared to the harm to the other party and the public if it granted relief; and
- whether the court can compensate the harm to the person seeking the order in money.
For example, if the person alleging copyright infringement is unlikely to suffer extensive loss if the book went to print, but the author is likely to suffer financial loss if they are unable to publish, it is unlikely the court will grant a cease and desist order.
How to Get a Cease and Desist Order
Before commencing court proceedings, it is a good idea to attempt sending a cease and desist letter first. In many instances, sending a well-worded cease and desist letter can be enough to resolve a dispute. Keep in mind that resolving the dispute without the need for proceedings is more cost-effective and efficient.
If you are unable to resolve the dispute outside of court, you may file for a cease and desist order. This involves filling a lawsuit claiming a breach of your rights. Filling a lawsuit requires you to submit the relevant information regarding your alleged breach and any cease and desist letters you have sent.
If the court grants a cease and desist order, it is legally binding and generally enforceable under the law. Violating court-granted cease and desist orders can lead to legal penalties. A court may also take the orders into account when calculating damages.
Courts use cease and desist orders to prevent further harm or the continued breach of rights before a trial ends. However, they require the filling of a lawsuit which can be a lengthy and costly undertaking. It is therefore essential to attempt to resolve the dispute outside of court first. Sending a cease and desist letter is the first step in resolving a dispute where a party has infringed your commercial rights.
If you have further questions about cease and desist orders, or need assistance drafting a cease and desist letter, get in touch with LegalVision’s dispute resolution lawyers on 1300 544 755 or fill out the form on this page.
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