Before taking legal action before court against a rights infringer in the field of field of completion- trademark, internet- or design law, as well as copyright- and patent law, a rights holder will send out a warning letter including a cease and desist declaration. In this letter the right holder inform the third party about his rights (concerning e.g. his exclusive rights to a trademark ore his exclusive license rights). Or, he claims an infringement of competition law. He shows up in which way he sees an infringement of his rights by the action of the warned party (e.g. the infringer). At the same time the warned party (e.g. the alleged infringer) is requested to sign a cease and desist letter.
Main reason for sending out a cease and desist letter is to prevent the warned party (the alleged infringer) from giving an immediate acknowledgement before court. Should one claim before having sent out a cease and desist letter, one has the risk of the infringer excepting immediate and giving an immediate acknowledgement before court. Problem here is, that then the claimant has to bare all costs. There are exception, where one can immediately go to court without having to bear the costs, especially when dealing with infringements during a fare as well as in cases where sequestration is requested.
Author: Specialised trademark lawyer Thomas Seifried