Demand letters, or letters before action as they are called in the U.K., are typically used to persuade the recipient to take or cease some action, to revoke a waiver of rights, or simply to provoke a reaction that you can use to your client’s advantage in the future.
Use plain English whenever possible in order to insure that the letter is understood by the recipient, balance succinct style with sufficient detail, and adapt the format and content, including the depth of legal analysis, to the recipient. Use the introductory paragraph to identify your representative capacity and clearly state the purpose of the letter. In the body of the letter state the legal and factual bases for your demands and then state your demands followed by an implicit or explicit threat to take legal action if the demands are not met. Overall, demand letters should be a firm statement of your client’s position and intentions, and while demand letters are often written to intimidate, they should not bully the recipient.
Get good examples from your colleagues or contacts and avoid common errors such as using inflammatory language, and misstating the facts and/or the law.
For example, a demand letter in the context of a dispute regarding intellectual property rights might be drafted as (using a U.S. business letter format):
Dear Mr. Adversary:
We represent Instinctive Sports (“IS”), a leading manufacturer of professional athletic shoes. IS owns all trademark rights in the well-known symbol that adorns our products and sales and marketing materials. The mark is widely known and famous throughout this jurisdiction.
It has come to our attention that you have registered the domain name “is.nu.” This domain name inherently refers to Instinctive Sports. There appears to be no good faith reason for you to have registered this domain name, since you have no connection to IS.
If you have registered the domain name in bad faith, your actions may subject you to the loss of your domain name as well as to civil penalties of up to $100,000 under the Anticybersquatting Consumer Protection Act. As your website currently offers athletic goods, your actions also constitute trademark infringement and/or dilution under the Trademark Act.
Accordingly, we seek your prompt written assurance that (1) you have ceased publication, distribution, transmission, or dissemination of any information, goods, or services under the name “is.nu,” or any other name confusingly similar thereto; and (2) you will either delete the domain name “is.nu” from the domain name registry or immediately transfer the name to IS.
If we can have your agreement on these points, IS will be willing to consider this matter closed. Alternatively, we will commence an action at the World Intellectual Property Organization pursuant to the Uniform Domain Name Dispute Resolution Policy, and a civil action, seeking injunctive relief, damages, and attorneys’ fees.
Please respond by no later than 17 November 2006. If we do not have your written agreement by that date, IS will commence legal proceedings without further notice.