| Declaratory Judgment |
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Information AboutDeclaratory Judgment |
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A declaratory judgment is typically requested when a party is threatened with lawsuit and the threatened lawsuit is not yet filed; or when it is thought by one of two (or more) parties that their rights under law and/or Contract might conflict; or as part of a Counterclaim to prevent further, similar lawsuits from the same plaintiff (for example, when only a contract claim is filed, but a copyright claim might also be applicable). It may also be sought in Administrative Law instead of prerogative writs such as Certiorari or Prohibitions . In the United States , the Federal Government and most states have enacted statutes authorizing their courts to issue declaratory judgments. In some common law jurisdictions, declaratory judgement is a form of Equitable Relief . CEASE AND DESIST Declaratory judgment is common when one party sends another a Cease And Desist letter. A case or controversy arises when the cease and desist letter places the recipient in "reasonable apprehension" of Litigation . Cease and desist letters allow the recipient to file for declaratory judgment in their own Jurisdiction , which requires the sender to appear in a distant court, at their own expense. In determining whether a cease and desist letter creates a "reasonable apprehension" of litigation, courts will look to the Totality Of The Circumstances . In the Patent law context, a court will find a "reasonable apprehension" when a letter expressly charges Infringement . However, a cease and desist letter may make "an oblique suggestion of possible infringement" without creating a "reasonable apprehension" of litigation. Letters stating that a particular "use" "appear {Link without Title} to be covered" by a patent or offering the recipient a License have been held to be merely an "oblique suggestion." Nevertheless, a court may find a "reasonable apprehension" of litigation if there are "additional indicia of the potential for litigation." EXTERNAL LINKS
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