1. The holder of intellectual property rights is
strictly liable for loss caused by a cease-and-desist letter if a court later rules that
the recipient is not an infringer.
2. A cease-and-desist letter is actionable only if sent to the
alleged infringer’s customers.
3. The issuance of a cease-and-desist letter with anticompetitive
intent is improper.
4. The holder of intellectual property rights cannot be held liable
for issuing a cease-and-desist letter if the underlying claim is valid.
5. A mere statement of belief, even if untrue, cannot provide a basis
for liability.
6. Exaggerated claims and overly broad publication of a
cease-and-desist letter are indicia of anticompetitve intent.
7. A cease-and-desist letter can properly be based upon intellectual
property rights that have not yet matured.
8. Liability cannot be imposed where the sender of a cease-and-desist
letter had a good faith belief in infringement.
9. So long as litigation is not threatened, a cease-and-desist letter
is not actionable.
10. An attorney may rely upon the genuine belief of the client that
infringement has occurred.
11. A false statement in a cease-and-desist letter is not always
actionable.
12. Liability may be based upon the failure to promptly follow
threats with litigation.
13. Most claims of unfair competition may be effectively defended
through assertion of the First Amendment rights.
14. Litigation privileges grounded in California law may not be
applied against federal claims.
15. The litigation privilege may apply to cease-and-desist letters
issued prior to litigation.
16. The litigation privilege may be raised even if litigation was not
genuinely contemplated when the cease-and-desist letter was sent.
17. Cease-and-desist letters are not privileged insofar as they were
sent to non-participants in the litigation.
18. The attorney-client privilege is waived by the voluntary
disclosure of counsel’s opinion regarding the validity of an intellectual property
claim.
19. A direct demand to cease infringing conduct is sufficient to
confer subject-matter jurisdiction for a declaratory relief action.
20. An indirect threat of litigation is an insufficient basis of
jurisdiction. |
