A cease and desist (C&D) letter is a formal notice demanding that the recipient stop a specific activity — typically, conduct that infringes your intellectual property rights or damages your reputation. While C&D letters have no formal legal status (unlike a court order), they are a practical first step in IP enforcement and defamation disputes, signalling that you are aware of the problem and prepared to litigate if necessary. This guide covers the three most common contexts for C&D letters in Ontario: trademark infringement, copyright infringement, and defamation.
Trademark Infringement Under the Trade-marks Act
Canada's federal Trade-marks Act (TMA) gives registered trademark owners the exclusive right to use their mark in Canada in association with the goods and services for which it is registered (s. 19) and the right to prevent use of confusingly similar marks (s. 20). A C&D letter asserting trademark infringement should:
- Identify the registered trademark(s) at issue, including the registration number and Canadian Intellectual Property Office (CIPO) registration date.
- Describe the infringing use — where it is occurring, since when, and in association with what goods or services.
- Specify the legal basis: s. 19 (identical use with registered goods/services), s. 20 (confusing similar mark), or s. 22 (depreciation of goodwill in a well-known mark).
- Demand that the recipient immediately cease all infringing use, remove infringing materials from digital and physical channels, and confirm in writing that they have complied.
Copyright Infringement Under the Copyright Act
Canada's Copyright Act, RSC 1985, c C-42 grants copyright owners the exclusive right to reproduce, perform, publish, and translate their original works. Copyright in original works arises automatically upon creation — registration is not required, though it creates a rebuttable presumption of ownership and validity.
A copyright C&D letter in Ontario should:
- Identify the copyrighted work(s) — with sufficient specificity (title, creation date, author/owner).
- Describe the infringing use — which specific portions were copied, adapted, or reproduced, and where (specific URLs, products, publications).
- Assert the legal basis: direct infringement (unauthorized reproduction), secondary infringement (authorizing infringement), or moral rights violation.
- Demand removal of the infringing content, cessation of further use, and an accounting of any profits derived from the infringement.
- Preserve the right to claim statutory damages under s. 38.1 of the Copyright Act — currently up to $20,000 per infringement for commercial infringement.
Defamation: Libel vs. Slander in Ontario
Defamation involves the publication of a false statement of fact that injures the reputation of an identifiable person. In Ontario, defamation is governed primarily by common law, with the Libel and Slander Act, RSO 1990, c L.12 providing additional rules for broadcast and published media defamation.
The distinction between libel (written/permanent form) and slander (spoken form) matters in Ontario:
- Libel: Actionable without proof of special damage (financial harm). Online publications, social media posts, and newspaper articles constitute libel.
- Slander: Generally requires proof of actual financial harm unless it falls into special categories (imputing a criminal offence, unfitness for a profession, or sexual immorality).
A defamation C&D should demand an immediate retraction or correction, removal of the defamatory content, and a written apology. Under the Libel and Slander Act, a newspaper or broadcaster that promptly publishes a retraction may limit their damages exposure — many defamation C&Ds are structured to trigger this remedy quickly.
What a C&D Letter Accomplishes
A well-drafted C&D letter accomplishes several things:
- Provides the infringer with formal notice, which is relevant to damages calculations (wilful infringement after notice attracts higher damages).
- Creates a paper trail showing you enforced your rights (critical for trademark owners — failure to enforce can weaken your mark).
- May prompt a quick settlement without litigation costs.
- Starts the clock for the recipient to respond and makes the consequences of non-compliance explicit.
Limitations of DIY C&D Letters
While C&D letter templates can be a starting point, there are significant risks to self-drafting:
- An inaccurate legal claim (asserting copyright over something in the public domain, or trademark infringement where there is no real likelihood of confusion) can undermine your credibility and, in extreme cases, expose you to a counterclaim for abuse of process.
- A C&D that is too aggressive or contains threats beyond legal remedies (threatening criminal prosecution without basis, threatening to contact the recipient's employer) can constitute harassment or even extortion.
- A poorly drafted C&D may not adequately preserve your legal rights — for example, failing to reserve the right to claim retroactive damages.
Escalation: When C&D Letters Fail
If the recipient ignores or disputes the C&D letter, escalation options in Ontario include:
- Filing a claim in the Federal Court of Canada (for trademark and copyright matters) or the Ontario Superior Court (for defamation and common law IP claims).
- Applying for an interlocutory injunction to stop ongoing infringement while the main claim proceeds.
- For online infringement: sending a Digital Millennium Copyright Act (DMCA) notice (useful if the infringing content is hosted on US-based platforms) or a notice under Canada's "Notice and Notice" regime under the Copyright Act.
- For trademark matters: filing an opposition at CIPO if the infringer is attempting to register a confusingly similar mark.