What is a cease and desist letter under Australian law?

A cease and desist letter in Australia is a formal written demand requiring a person or organisation to stop engaging in conduct that infringes the sender’s legal rights. Unlike some other legal systems, Australian law does not prescribe a specific mandatory form for pre-litigation demand letters, but such letters serve the important practical function of putting the recipient on formal notice of the claim and providing them with an opportunity to resolve the dispute before court proceedings are commenced. In intellectual property matters, the relevant legislation (Copyright Act 1968 (Cth), Trade Marks Act 1995 (Cth), Patents Act 1990 (Cth), and Designs Act 2003 (Cth)) each provides rights-holders with the ability to seek injunctions, damages, and other relief in the Federal Court of Australia. The Australian Consumer Law (Schedule 2 of the Competition and Consumer Act 2010 (Cth)) provides separate bases for claims involving misleading or deceptive conduct (s18) or false representations (s29). A cease and desist letter is typically the first formal step before commencing such proceedings.

What remedies are available for copyright infringement in Australia?

The Copyright Act 1968 (Cth) provides a comprehensive range of civil remedies for copyright infringement. Under section 115, the copyright owner may claim: an injunction to restrain further infringement; damages for the loss suffered as a result of the infringement; and additional damages under section 115(4) where the infringement was flagrant, the infringer received a benefit, and it is just to award additional damages having regard to the conduct of the infringer. The court may also award an account of profits (requiring the infringer to disgorge the profit made from the infringement) as an alternative to damages. Section 116 provides for the delivery up of infringing copies and devices used to make them. Australia's Federal Court has awarded significant damages in copyright cases, particularly where the infringement was deliberate or commercially motivated. Criminal copyright offences under Part V of the Copyright Act may also apply where the infringement is done for commercial advantage or gain.

How does section 18 of the Australian Consumer Law apply to IP disputes?

Section 18 of the Australian Consumer Law (ACL), contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth), prohibits a person in trade or commerce from engaging in conduct that is misleading or deceptive or that is likely to mislead or deceive. This provision is frequently used in intellectual property disputes as an alternative or additional basis to statutory IP rights, particularly where the infringer does not have a directly competing registered trade mark. For example, if a competitor uses a business name, logo, or product get-up that is likely to cause consumers to believe there is a connection with the rights-holder’s business, this may constitute misleading or deceptive conduct under section 18, regardless of whether any registered trade mark is infringed. The ACL also provides for pecuniary penalties of up to $50 million for corporations found to have engaged in misleading conduct in trade or commerce, although these are primarily sought by the Australian Competition and Consumer Commission (ACCC) rather than private litigants, who would typically seek injunctions and damages.

Are there risks in sending a cease and desist letter for IP infringement in Australia?

Yes. Australian intellectual property statutes contain provisions that make it unlawful to make groundless threats of infringement proceedings. Under section 202 of the Copyright Act 1968 (Cth), a person who threatens another person with copyright infringement proceedings may themselves be sued for damages if the threat is groundless. Similar provisions exist under section 129 of the Trade Marks Act 1995 (Cth) (groundless threats of trade mark infringement proceedings), section 128 of the Patents Act 1990 (Cth) (groundless threats of patent infringement), and section 77 of the Designs Act 2003 (Cth) (groundless threats of designs infringement). A threat is ‘groundless’ if the conduct complained of does not actually constitute infringement. To minimise the risk of a groundless threats action, you should ensure that the allegations in your cease and desist letter are well-founded before sending it, and consider taking legal advice from a lawyer or patent or trade mark attorney before doing so.

Which court hears IP infringement cases in Australia?

Intellectual property disputes in Australia are primarily heard in the Federal Court of Australia and the Federal Circuit and Family Court of Australia (FCFCA). The Federal Court has jurisdiction over all federal IP matters under the Copyright Act 1968, Trade Marks Act 1995, Patents Act 1990, and Designs Act 2003, and has an Intellectual Property National Practice Area with specialised IP judges. The FCFCA (formerly the Federal Circuit Court) provides a lower-cost forum for less complex IP matters and hears many copyright and trade mark cases. Under the IP Laws Amendment (Productivity Commission Response Part 2 and Other Measures) Act 2020, the court also now has improved powers to manage IP litigation efficiently. For Australian Consumer Law claims, both the Federal Court and state Supreme Courts have jurisdiction. The Australian Competition and Consumer Commission (ACCC) also enforces the ACL and can take action on behalf of consumers and businesses in egregious cases.

Cease and Desist Letter (Australia) — Australia

Create a formal cease and desist letter for Australia. Covers IP infringement (Copyright Act 1968, Trade Marks Act 1995, Patents Act 1990, Designs Act 2003), misleading or deceptive conduct (Australian Consumer Law s18), false representations (ACL s29), passing off, and breach of confidence. Includes demands to stop infringing conduct, destroy materials, provide undertakings, and pay compensation. For use in Federal Court or FCFCA proceedings.

What Is a Cease and Desist Letter (Australia)?

A cease and desist letter is a formal written demand sent to a person or organisation requiring them to stop engaging in conduct that infringes the sender’s legal rights and to take specified remedial action. In Australia, such letters are used across a wide range of legal disputes, most commonly in intellectual property matters, Australian Consumer Law disputes, and breach of confidence cases. While Australian law does not prescribe a mandatory form for pre-litigation demand letters, a well-drafted cease and desist letter serves as the essential first formal step before court proceedings are commenced.

Australia’s intellectual property framework provides a comprehensive set of rights that may be enforced through cease and desist letters and subsequent court proceedings. The Copyright Act 1968 (Cth) protects original literary, artistic, musical, and dramatic works, as well as films, sound recordings, broadcasts, and published editions, without the need for registration. Copyright subsists automatically upon creation and lasts for the life of the author plus 70 years. The Trade Marks Act 1995 (Cth) provides protection for registered trade marks — distinctive signs used in commerce to distinguish one trader’s goods or services from those of another. IP Australia administers the Australian trade marks register. The Patents Act 1990 (Cth) protects inventions (standard patents for up to 20 years; innovation patents for up to 8 years). The Designs Act 2003 (Cth) protects the visual features of shape, configuration, pattern, or ornamentation of a product (registered design protection for up to 10 years).

Beyond registered IP rights, Australia’s Australian Consumer Law (ACL, Schedule 2 of the Competition and Consumer Act 2010 (Cth)) provides powerful protections against misleading or deceptive conduct in trade or commerce (section 18) and false or misleading representations (section 29). These provisions are frequently used in IP-adjacent disputes, particularly where a competitor is passing off their goods or services as those of another business, engaging in bait advertising, or making false claims about the nature or quality of their products.

Passing off is also available under Australian common law to protect unregistered trade marks and business goodwill. A passing off claim requires the plaintiff to establish that they have goodwill in a name, get-up, or other indicia; that the defendant has made a misrepresentation leading or likely to lead the public to believe that the defendant’s goods or services are those of the plaintiff; and that the plaintiff has suffered or is likely to suffer damage as a result.

When Do You Need a Cease and Desist Letter (Australia)?

A cease and desist letter is appropriate in Australia whenever a rights-holder discovers that another person or business is engaging in conduct that infringes their legal rights and they wish to demand that the conduct stop before commencing court proceedings. The need for such a letter arises in a broad range of situations under Australian law.

Copyright infringement is among the most common triggers. The Copyright Act 1968 (Cth) protects original works automatically upon creation, without registration. Common situations include: the unauthorised use of photographs, artwork, or illustrations in marketing materials or websites; copying of written content (website copy, articles, software code); the unauthorised use of music or video content; and the reproduction of architectural plans or engineering drawings. A cease and desist letter demands immediate removal of the infringing content, confirmation of destruction, and compensation for the infringement.

Trade mark infringement arises under the Trade Marks Act 1995 (Cth) when a person uses a sign identical or deceptively similar to a registered trade mark in relation to similar goods or services. In Australia, trade marks must be registered with IP Australia to obtain statutory protection. Common situations include competitors using similar brand names, logos, or packaging; the registration of domain names that incorporate a registered mark; and the sale of counterfeit goods. An Australian cease and desist letter in trade mark matters demands cessation of use, removal from registers and websites, delivery up of infringing goods, and written undertakings.

Misleading or deceptive conduct under section 18 of the ACL arises whenever a business engages in conduct in trade or commerce that is likely to mislead or deceive consumers. This includes comparative advertising that misrepresents competitors’ products, false reviews, misleading pricing claims, and conduct likely to cause confusion about the origin of goods. The ACL applies to all businesses operating in Australia regardless of whether they hold registered IP rights.

Breach of confidence protects trade secrets, confidential business information, client lists, and technical know-how that has been disclosed in circumstances of confidence. A cease and desist letter in a breach of confidence case demands that the misuse of confidential information cease immediately and that all copies of the information be returned or destroyed. Under Australia’s recently enacted Trade Secrets legislation, the National Security and Other Legislation Amendment (Espionage and Foreign Interference) Act 2018 also provides additional avenues for protecting certain categories of confidential information.

What to Include in Your Cease and Desist Letter (Australia)

A legally effective cease and desist letter for Australia must contain several key elements to ensure that it puts the recipient on adequate notice, protects the sender from groundless threats liability, and maximises the sender’s options if proceedings are ultimately required.

Party identification must be precise. The sender’s full legal name and address must be stated clearly, together with contact details. If the sender is a company, the full company name and ACN should be used. The recipient must also be identified by full legal name and address. If the recipient is a company, the ASIC-registered company name and ACN should be confirmed (ASIC Connect can be used to verify these details).

The legal basis of the claim must be set out with specificity. The letter must identify: (1) the rights the sender relies upon (for example, an Australian trade mark registration number, specific copyright works, patent number, or design registration); (2) the conduct complained of (with dates, URLs, product names, and evidence references); and (3) the applicable Australian legislation (Copyright Act 1968 (Cth), Trade Marks Act 1995 (Cth), ACL sections 18 or 29, etc.). Vague claims undermine the letter’s credibility and may give rise to a groundless threats claim.

Groundless threats provisions under Australian IP legislation must be carefully considered. The Copyright Act 1968 (s202), Trade Marks Act 1995 (s129), Patents Act 1990 (s128), and Designs Act 2003 (s77) each prohibit making groundless threats of infringement proceedings. A rights-holder who makes groundless threats may be sued for damages. The letter must be carefully drafted to ensure that the allegations are well-founded and that only conduct that actually constitutes infringement is alleged.

The demands must be explicit, numbered, and proportionate. Standard demands include: cessation of the conduct; removal of infringing content or products; delivery up or destruction of infringing materials; provision of written undertakings; and payment of compensation or account of profits. The demands should be proportionate to the infringement.

A reasonable response deadline must be specified. In Australian IP matters, 14 days is standard for straightforward matters and 21 days for more complex matters. The letter should specify both the number of days and the calendar deadline date.

The warning of legal proceedings must specify the court (Federal Court of Australia or the Federal Circuit and Family Court of Australia) and the remedies to be sought (injunction, damages, account of profits, delivery up, costs).

A reservation of rights clause confirms that nothing in the letter waives the sender’s rights or remedies.

Evidence preservation notice puts the recipient on formal notice to preserve relevant documents and electronic records, reducing the risk of evidence destruction before proceedings are commenced.

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