This IP First Response website has been designed to help IP rights holders navigate IP infringement and enforcement by making it visible, accessible, and to provide information about the factors involved in pursuing different options. It does not provide legal, business or other professional advice, and none of the content should be regarded as recommending a specific course of action. We welcome any feedback via our IP First Response feedback form and by emailing us.

What is it?

See information about what counts as infringement

A letter of demand, or a cease and desist letter, can be an effective way of stopping infringing behaviour and avoiding the need for legal action. You can use this letter to communicate your concerns and demands. It’s often one of the first actions taken if you are satisfied that an infringement is occurring. 

An effective letter of demand will:  

  • Identify your ownership of the IP right (or the other basis on which you can make a claim if you do not own the right yourself – for example, if you have an exclusive licence) and whether you are entitled to make requests to cease infringement.
  • Document the infringing conduct, with written examples, if possible.
  • Specify the legislation under which your IP is being protected.
  • Clearly specify your demands – for example, that the party stop infringing your IP rights, return or destroy all infringing property, pay you compensation, or obtain a licence from you.
  • Give a specific timeframe for the infringer to stop infringing, return all infringing property to you, or pay the requested sum.
  • State that if the demands aren't met, you may take further actions to stop the infringing behaviour.  

Before sending a letter of demand, you will need to be satisfied that the other party’s actions amount to infringement and it is recommended that you speak to an IP lawyer or an IP attorney. There can be serious consequences if you send a letter of demand with no basis including a risk that the party you sent the letter of demand to may sue you. IP laws include ‘unjustified threat’ provisions (also referred to as ‘groundless threats’ in copyright law) under which you might be liable to pay damages/compensation or you may be ordered to stop making the threat. 

For more information about what constitutes an infringement, see our information on what infringement can look like. An IP professional can help you make this assessment and draft the letter.  

Please note that sending a letter of demand before consulting with an IP professional may result in detrimental outcomes for you and your IP right. Please consider carefully if you want to undertake this action and are fully aware of the risks involved.  

A letter of demand will also usually be more effective if it is sent by an IP lawyer or IP attorney on your behalf, rather than you sending it personally. However, you may want to consider the cost of obtaining this legal assistance against the monetary value of any compensation or licence fee you are seeking.  

What are the benefits? 

What are the risks? 

  • Making an unjustified threat that you will start legal action against another person for IP infringement can result in liability for compensation, damages or costs and in you being ordered to stop making the threat. 
  • Including unreasonably onerous and aggressive terms in your letter (for example, short time frames, demands that do not relate to the IP in question) may prompt the other party to escalate and resist, rather than comply.
  • Exposing yourself to the other party by contacting them might prompt the other party to take actions against you, escalating the conflict in an unwanted way. This could potentially jeopardise your own IP rights.
  • For trade marks, it might also prompt the other party to apply for their own trade mark, which may then need to be opposed.
  • Sending a letter of demand might give the suspected infringer time to hide or destroy evidence. This could harm your case in future legal actions. If you are worried about this possibility, speak to an IP lawyer before you take any further action. 

What are the possible outcomes? 

Sending a letter of demand can result in a wide range of different outcomes depending on the specific circumstances.  

Some possible outcomes are: 

  • The alleged infringing behaviour stops upon receipt of the letter, especially if the recipient was simply unaware of existing IP rights.
  • The alleged infringer does not change their behaviour, in which case you may have to consider other enforcement options.
  • Parties can engage in further correspondence disputing part or all of your claims.
  • The conflict can further escalate into more serious, formal dispute settlement procedures (that is, litigation, arbitration, administrative hearings).
  • The other party may not fulfil all the requirements but may be willing to participate in some form of negotiation.
  • The other party may commence proceedings challenging the validity of the IP right, or be prompted to take legal action against you (for instance if they are of the opinion that you are infringing on their rights). This could include seeking damages or compensation for unjustified threatsor an order that you stop making the threat. 

What might the costs be?

If you engage an IP professional to give you legal advice or draft a letter for you, you will have to pay their fees.

Fees for IP professionals vary depending on the complexity of the issues at hand and which type of IP professional you engage. Fees to draft a letter of demand generally sit between: 

  • For trade marks: $1,500 to $5,000
  • For patents: $1,500 to $10,000

However, you should keep in mind that before drafting a letter of demand, it would be necessary to review relevant materials to confirm whether there is a proper basis for sending the letter of demand, because sending an unjustified threat could expose you to legal action. This means that the fees will also depend on how much work may be required to establish your IP rights and to confirm that there is a proper basis for your suspicion that your IP rights are being infringed by the other party.  

Some copyright owners could explore avenues for accessing low- or no-cost legal advice. For example: 

  • the Arts Law Centre of Australia (a not-for-profit independent national community legal centre for the arts) can provide advice to artists and arts organisations on queries related to their arts practice, including in relation to copyright (www.artslaw.com.au/services/legal-query-form/). Arts Law also offers a template letter of demand for copyright infringement, which is free for subscribers and low cost (around $30) for non-subscribers. Arts Law can also provide advice on draft letters that use their template, or otherwise provide a referral to other lawyers who can assist in drafting a letter (though lawyer fees would apply).
  • The Australian Copyright Council (an independent, not-for-profit Community Legal Service (CLS) whose affiliate members include the peak bodies for Australian writers, musicians, designers, photographers, visual artists, journalists, film makers and architects) offers eligible persons (predominantly those working in the creative industries) free written advice (www.copyright.org.au/legal-advice/).

How much time might be involved?

Sending a letter of demand is generally considered to be a quick and simple enforcement option.   

The amount of time required for sending a letter of demand will vary depending on the complexity of the infringement and whether you choose to engage an IP professional to act on your behalf.  

It is up to you to determine how much time the other party can take to comply with your demands laid out in the letter. It's common to request action is taken within a short period such as '10 business days'.  

Who can use this? 

Someone who owns IP or is an authorised user, and can provide evidence of their rights.   

Who’s involved? 

  • IP right owner/s or authorised users of IP. 
  • Alleged infringer(s). 
  • (Optional) IP professionals acting on parties’ behalf.  

What do you need to proceed? 

Understanding what constitutes IP infringement, and possible consequences of contacting a suspected infringer, can help you decide if this is the right option for you. 

It's important to get all the factual details right and evaluate the merits of your claims before you send out a letter of demand, to give yourself the best chance of success. Making unjustified claims of IP infringement can have serious consequences. If you are found to have made an unjustified threat, you might be liable to pay damages/compensate the other party or you may be ordered to stop making the threat. 

Here are some things you might wish to check and consider before sending a letter of demand and you should consider engaging an IP lawyer or IP attorney to work through these issues with you:  

  • The status and details of the relevant IP in the jurisdiction where infringement occurred. For registered rights, this includes checking the status of your IP registrations, and whether the alleged infringer has registered IP rights with IP Australia or overseas IP offices. For copyright, this might include checking any rules around registration in that other jurisdiction – while there is no copyright registration requirement or system in Australia, this is not the case everywhere.
  • Whether the other party’s conduct amounts to infringement, having regard to what infringement looks like, to avoid making unjustified threats. For registered IP, it's worth considering the 'scope of protection' of your registered claim. For trade marks, this includes the goods or services attached to your registration, and whether the other party is offering similar goods and services. For patents, it includes whether the product or process contains all the essential features of a claim in a granted patent. For copyright, you could consider whether any exceptions or statutory licence under copyright law may apply that could have enabled the use of the material in question without your permission. For more information about copyright exceptions, see Copyright infringement | IP Australia First Response.

The identity and contact details of the suspected infringer. It’s important to send the letter to the correct party. You might wish to consider sending correspondence by registered mail,and keeping records to show that a letter was sent to a specific address on a particular date.  If you are not sure about any of the above, then you should speak to an IP professional for help.

Before taking this action, it might also be helpful to consider your goals and potential outcomes, including: 

  • Whether there any other less confrontational and more informal ways to contact the other party before sending out the letter.
  • Options for outcomes that would benefit or be agreeable to everyone involved.
  • Whether you will be prepared to be engaged in further correspondence, negotiation or even disputes with the other party. If you threaten to do something and do not follow through, it could be found to be an unjustified threat. 

Consider contacting an IP professional for advice and assistance 

It can be difficult to determine whether the other party’s behaviour amounts to infringement. An IP lawyer or IP attorney can help you make this assessment and advise what steps would work best in your situation.  

Please note: Making informal contact before consulting with an IP professional can result in detrimental outcomes for you and your IP right. Please consider carefully if you want to undertake this action and are fully aware of the risks involved. If unsure, please consult an IP professional.    

See also 

Exercise caution before making accusations of infringement

Making an unjustified threat that you will start legal action against another person for IP infringement can result in liability for compensation or damages or an order that you stop making the threat. Proving infringement is an important issue that should be considered before sending a letter of demand.  

Before you take any action, you should consider whether you need legal or professional advice specific to your situation. It is important to know what rights you have, what remedies are open to you, and the cost and likelihood of success. IP Australia provides information on getting professional assistance with your IP. In addition, the Institute of Patent and Trade Mark Attorneys Australia (IPTA) offers free 30 minute consultations with an attorney. 

 

  1. Weatherall K and Webster E (2010) ‘Patent infringement in Australia: Results from a survey’, Federal Law Review, 38, 21-70, 40 

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