Passing Off Cease & Desist Letter
This Passing Off Cease and Desist Letter (also known as a “letter of claim”
or a “letter before action”) is designed for use as a first step when
another party is engaged in passing off. The key value of a cease and
desist letter is that it puts an infringer on notice that their activities
are known and aims to resolve the matter without recourse to costly and
potentially time-consuming litigation.
This Cease and Desist Letter template has recently been reviewed for
compatibility with the Intellectual Property (Unjustified Threats) Act 2017
and has been updated to conform with current best practice.
Due to the risk of threats actions being sought against would-be IP
claimants, it is very important that this letter should not be used in
relation to any matter other than passing off. There is no threats action
relating directly to passing off but there is with respect to registered
trade marks, designs, and patents. If the situation is in any way unclear
or uncertain or involves multiple IP rights, legal advice should be sought
before taking any steps.
When providing details and evidence of the alleged passing off, it is
important to strike a balance between providing enough detail to support
the allegation, but not so much that information is revealed that would
place the accuser at a disadvantage. Evidence of infringement may include,
for example, specimens, photographs, marketing materials and other
Having set out the details of the owner’s goodwill and reputation and the
alleged passing off, a series of undertakings required of the recipient is
provided. Of these, the second requires information from the infringer
designed to enable the accuser to calculate what sums may be due to them to
compensate for the passing off (a subsequent undertaking requires the
infringer to pay such sums). It is important to note that what is sought
will vary depending upon the circumstances. In some cases, a full account
of profits may be desirable. On the other hand, in situations where the
infringement is less significant, it may be preferable to agree upon a
smaller sum in the interests of concluding matters quickly and amicably
without resorting to further legal action. Once again, where there is any
doubt or disagreement, seeking proper legal advice is urged.
Optional phrases / clauses are enclosed in square brackets. These should be
read carefully and selected so as to be compatible with one another. Unused
options should be removed from the document.
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highlighted fields or adjust the wording to suit your purposes.
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