Cease-and-Desist Letters in France (Mise en Demeure)

What a mise en demeure is — and is not

A mise en demeure is the French formal demand letter: the written notice by which a rights holder puts an alleged infringer on notice and demands that the conduct stop. In trademark matters it is the usual first step before litigation, and drafting one with a French attorney is often a necessary stage in asserting rights that may later be enforced in court.

Functionally it plays the same opening role as a US cease-and-desist letter. But the legal environment around it is different enough that a letter drafted on US instincts — or a response drafted on US instincts — can misfire in France. Two differences stand out.

First, there is no US-style discovery in France. Whatever facts and documents will support the claim must be assembled by the rights holder itself, before or alongside the letter. A serious mise en demeure is therefore also the start of the evidence file: it is the moment to begin gathering the court decisions and the proof of the alleged infringing acts that would carry a later case. See how evidence is gathered in France.

Second, France applies a loser-pays principle in litigation (article 700 of the Code of Civil Procedure). Both sides know that if the dispute goes the distance, the loser will be ordered to contribute to the winner’s attorney fees. That backdrop is part of what makes a credible, well-documented letter effective: in negotiation, each party’s assessment of its maximum exposure is a decisive factor.

Sending a French cease-and-desist for a US client

What the letter should contain

A mise en demeure can be very brief or fully developed. In our experience, the more detailed and convincing the letter, the higher the chances of an amicable resolution. A well-built letter typically sets out:

• The facts — precisely what the recipient is doing, where, and since when;
• The applicable law — the French or EU trademark provisions relied on;
• Court decisions supporting the owner’s position, chosen by counsel who knows which precedents French judges actually follow;
• The owner’s demands — what must stop, and by when;
• Where appropriate, the outline of a settlement — the letter can sketch the framework of an amicable resolution when one is realistic.

A clear statement of the facts and of the applicable rule of law is what opens the negotiation. A trademark specialist will select the strongest facts, the strongest arguments, and the most favorable case law for the rights holder — which is different from sending the loudest possible letter.

The letter alone is not the strategy

Even the best mise en demeure does not, by itself, secure the client’s rights. It should be followed by negotiation conducted through counsel. Here French practice offers a structural advantage that has no US equivalent: communications between French attorneys are confidential by nature, subject to limited exceptions. Unlike US settlement correspondence — protected only within the limits of evidentiary rules — attorney-to-attorney exchanges in France cannot ordinarily be produced in court at all. That confidentiality makes candid settlement discussion considerably easier. See amicable settlement of trademark disputes.

If the letter and negotiation fail, the escalation path runs through litigation before the French courts, where the case begins with a writ of summons served by a bailiff. A letter that was drafted with that endgame in mind — facts verified, law accurate, demands proportionate — reads very differently to the other side than one that was not.

Your US client received a mise en demeure: how to respond

US companies regularly receive French demand letters over product names, e-commerce listings, or domain names used in the French or EU market. The instinct to ignore a foreign letter is understandable — and usually wrong.

Why responding is recommended

Responding to a mise en demeure for trademark infringement is recommended in order to avoid the dispute escalating — up to and including a writ of summons (assignation) and a full infringement trial in France. Silence does not make a French claimant go away; it tends to confirm their counsel’s advice to sue. Keep in mind that in a later French action, good faith is no defense to civil infringement, and the loser-pays rule means an unexamined “wait and see” position carries a real price tag. See what counts as infringement in France.

A detailed, well-argued response, by contrast, often puts an end to the dispute entirely.

What French counsel does with the letter

Before anything is sent back, the letter needs a genuine legal assessment, not a reflexive denial:

• Map the rights. A French trademark attorney will first inform you of your client’s rights and of the third party’s rights, so the client understands the actual legal position it is in — including whether the claimant’s mark is as strong, or as broad, as the letter suggests.
• Decide whether to contest. Counsel will advise whether the letter should be contested or not. Sometimes the claim is solid and the smart play is a negotiated exit; sometimes the letter overreaches badly and a firm, reasoned refusal is the right answer.
• Put your client’s arguments forward. The response is the opportunity to assert your client’s point of view and its own arguments — prior rights, differences between the signs or the goods, absence of use in France, weaknesses in the claimant’s registration.
• Explore coexistence. Counsel can also pursue an amicable resolution, including a possible coexistence agreement with the author of the letter — often the most durable outcome when both businesses can operate in distinct lanes.

After the response, your client should know exactly what the possible next steps are — from a signed settlement to French court proceedings — and can make an informed commercial decision rather than a guess.

Timing and coordination with US counsel

A mise en demeure is frequently the prelude either to a settlement or to a lawsuit. Which way it tips depends heavily on the first weeks: whether evidence was secured, whether deadlines set in the letter were handled seriously, and whether the reply positioned the client for negotiation. We routinely work as French counsel alongside US in-house teams and law firms on both sides of these letters — drafting and sending them for US rights holders, and assessing and answering those received by US companies. Fees can be billed in EUR or USD; for typical starting fees, see trademark fees and costs. [VERIFY: publish “from €X” starting fee for drafting or responding to a mise en demeure — no figure in the French source pages.]

Received a French demand letter, or need one sent? Contact us before the deadline in the letter runs.