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 documents.
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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