Cease and desist letters in IP: timing and threat risks

A cease and desist letter is a formal demand that a third party stop infringing your intellectual property, and it is the first step in most disputes. In Spain it has real legal effects: it can make a downstream infringer liable for damages, and since April 2025 it can form part of the negotiation attempt required before most civil claims. Badly timed or badly worded, it warns the infringer to hide evidence and can expose you to a claim for unjustified threats or unfair competition. This guide explains when a cease and desist in intellectual property cases helps, when it hurts, and what it should say.

Key takeaways

In Spain, many trademark infringers owe damages only from the moment they were sufficiently warned (Trade Marks Act, art. 42.2); for patents, a warning means the infringer is deemed to have acted knowingly (Patents Act, art. 72.2).
Since 3 April 2025, most civil claims require a prior attempt at negotiation, and a documented request to negotiate interrupts limitation.
Do not write first when surprise matters: counterfeit networks, evidence that can vanish or domains that can be moved.
In the UK, unjustified threats of infringement proceedings are actionable; in Spain, unfounded warnings sent to customers can be challenged as unfair competition.
Address the letter to the right person, base it on a right you can prove and keep the tone factual.

What does a cease and desist letter achieve in IP?

Beyond asking the other side to stop, a well-prepared letter changes the legal position in four ways:

Effect	Legal basis	Practical note
Starts liability for damages of indirect trademark infringers	Trade Marks Act 17/2001, art. 42.2	Applies to those other than the person who affixes the sign or first markets the goods, unless they acted negligently or the mark has a reputation
Deems a patent infringer to have acted knowingly	Patents Act 24/2015, art. 72.2	The patent must be properly identified and the letter must ask the recipient to stop
Establishes knowledge for damages under EU law	Directive 2004/48/EC, art. 13	Damages for the actual prejudice are owed by infringers who acted knowingly or with reasonable grounds to know; for others, recovery can be limited (art. 13(2))
Counts towards the pre-trial negotiation requirement and interrupts limitation	Organic Law 1/2025, arts. 5, 7 and 10	The request must define the dispute, and you must be able to prove receipt and access to its full content

The last point is new. Since 3 April 2025, Spanish civil claims are generally admissible only after an attempt to resolve the dispute through an “adequate means” such as mediation, a confidential binding offer or direct negotiation between the parties or their lawyers. A letter that invites negotiation on the same subject as the future claim, and is properly documented, can form part of that attempt. A bare demand with no room to negotiate may not be enough.

When should you send a cease and desist letter, and when not?

A letter is usually the right first step when:

your right is registered, in force, used and clearly covers the conduct;
the other side is an identifiable business with something to lose, such as a competitor, a former distributor or a supplier;
you want a negotiated outcome: rebranding, phase-out, coexistence terms or undertakings;
evidence is already secured and cannot easily disappear.

It is often the wrong first step when:

you face an organised counterfeiting operation: stock and records can be moved within hours, so customs action, evidence-gathering orders (diligencias de comprobación) or a preliminary injunction come first. Organic Law 1/2025 does not require a prior negotiation attempt for preliminary injunctions requested before the claim or for preliminary measures (art. 5.3);
the target is a cybersquatted domain: under the UDRP Rules (the Uniform Domain Name Dispute Resolution Policy) the registrar locks the name only after the provider receives a complaint, so a letter can prompt a transfer to another holder;
you need an ex parte order, where the court acts without hearing the other side because notice would defeat the purpose.

The risk of unjustified threats

A letter is not risk-free. The consequences depend on the country.

United Kingdom

The Intellectual Property (Unjustified Threats) Act 2017, in force since 1 October 2017, inserted sections 21 to 21F into the Trade Marks Act 1994, with parallel rules for patents and designs. In outline:

A communication is a threat if a reasonable recipient would understand that a registered right exists and that someone intends to sue for infringement.
Threats about applying the sign to goods, importing goods or supplying services under the sign are not actionable, nor are threats made to someone who has done or intends to do those acts. Threats to retailers and customers usually are.
“Permitted communications”, such as giving notice that the mark exists or asking who is behind the infringement, are protected; a demand to stop using the sign is not a permitted purpose.
Any person aggrieved can seek a declaration, an injunction and damages. The main defence is to show that the acts do infringe.
Professional advisers acting on instructions and identifying their client are not personally liable, but the client is.

Spain

Spain has no specific unjustified threats action. However, the Unfair Competition Act 3/1991 treats as unfair any statement about a third party’s business that can damage its standing in the market unless it is accurate, true and relevant (art. 9, denigration), and any conduct objectively contrary to good faith (art. 4). An unfounded infringement warning sent to a competitor’s customers or distributors can be challenged on those grounds. For patents, a recipient who believes it does not infringe can formally ask the holder to take a position and, after one month, sue for a declaration of non-infringement (Patents Act, art. 121).

Online platforms

Notices to platforms are a form of warning too. Under Article 23 of the Digital Services Act, platforms must suspend, after a warning, the processing of notices from people who frequently submit manifestly unfounded ones.

What a well-drafted IP cease and desist letter contains

The right relied on: registration number, office, owner and the goods or services covered, with a copy of the certificate.
The infringing acts, with dated evidence: URLs, photos, invoices, test purchases.
The legal basis, stated briefly and accurately, without overstating the case.
Specific demands: stop the conduct, withdraw stock, disclose suppliers and quantities, sign an undertaking.
A reasonable deadline and an invitation to negotiate, so the letter can also serve as the pre-trial attempt.
The right recipient: the manufacturer, importer or main seller, rather than its customers.
Delivery by a method that proves receipt and content, such as burofax or a traceable electronic notice.

What this means for your business

Decide the strategy before the letter: what you want, what you will do if there is no answer and which court or office comes next.
Check your own position first, including use of the mark, ownership and validity; the reply will test it.
Coordinate across countries. The same letter can be prudent in Spain and actionable in the UK; in Latin America and Africa local rules on warnings and pre-trial steps differ again.
Keep the full record: the letter, proof of delivery and any reply will be exhibits if the case goes to court.

For disputes that may end in court, our IP dispute and enforcement team can prepare the letter as the first step of a planned strategy, and our trademark portfolio service can confirm that the rights you rely on are solid.

Where companies get cease and desist letters wrong

Writing before securing evidence. The website changes, the stock moves and the domain is transferred.
Threatening customers instead of the source. In the UK it is actionable; in Spain it can be denigration.
Overstating the right: claiming registered protection that does not exist, wrong classes or expired marks.
Setting a deadline and then doing nothing, which weakens credibility and can later suggest tolerance.
Using a template across countries without checking local rules on threats and pre-trial requirements.

Most of these mistakes come from treating the letter as a standalone task. When the same team plans the letter, the evidence and the next procedural step, the letter becomes leverage rather than a risk.

Frequently asked questions

Is a cease and desist letter mandatory before suing for IP infringement in Spain?

Not as such, but since 3 April 2025 most civil claims require a prior attempt at negotiation. A documented letter that defines the dispute and invites negotiation can form part of that attempt. Preliminary injunctions requested before the claim and preliminary measures are exempt, which matters when surprise is essential.

Can I be sued for sending a cease and desist letter?

In the UK, yes: unjustified threats of trademark, patent or design infringement proceedings are actionable by anyone aggrieved, unless the threat is permitted or the acts infringe. In Spain there is no specific threats action, but unfounded warnings sent to third parties such as customers can be challenged as denigration or conduct contrary to good faith.

Who should receive the letter?

Usually the manufacturer, importer or main seller responsible for the infringement. Letters to retailers or customers are the riskiest: they are actionable threats in the UK and can damage the recipient’s reputation in ways that lead to unfair competition claims in Spain. In Spanish trademark law, however, a warning can be needed to claim damages from resellers.

Can IP Global Guard draft and send cease and desist letters for my company?

Yes. We assess the right and the evidence, draft and send the letter and manage the negotiation and next steps, directly where our professionals are entitled and through qualified representatives otherwise. Across Latin America and Africa we coordinate local correspondents, so letters follow local rules and you keep one point of contact.

How IP Global Guard can help you send the right letter

A cease and desist letter works best when it is the first move of a plan, not a reflex. IP Global Guard, the IP services line of META Channel Corporation Limited, handles IP disputes from the first letter to court across more than 25 jurisdictions in Europe, Latin America and Africa, with one strategy and one billing relationship.

Share the right you want to enforce, evidence of the infringement and the outcome you want. We will tell you whether a letter is the right first step and, if so, prepare it with the next move ready. Talk to our IP disputes team.

This article is general information, not legal advice, and does not replace an assessment of your specific case.

Cease and desist letters in IP: when to send one and the threats risk

Key takeaways

What does a cease and desist letter achieve in IP?

When should you send a cease and desist letter, and when not?