Can an Aerus franchisee challenge the company's right to the Marks?
Aerus Franchise · 2025 FDDAnswer from 2025 FDD Document
ates. Nothing in this Agreement gives Franchisee any right in or to any of the Marks, except as specifically set forth in this Agreement. Franchisee shall not, for itself or together with any other person or entity, challenge Company's right, title or privilege in or to any of the Marks. Franchisee acknowledges the value of the Marks and the importance for Company to maintain proper control of the use of the Marks and to protect the Marks from infringement, abuse and misuse. Franchisee further acknowledges that any infringement, abuse or misuse of the Marks would result in irreparable injury to Company for which no adequate remedy at law may be available, and, notwithstanding any general requirement to arbitrate disputes, Franchisee consents to the issuance of an injunction prohibiting any conduct by Franchisee that may constitute infringement, abuse or misuse of the Marks or that otherwise would violate the terms of this Section without the necessity of showing actual or threatened harm, likelihood of success on the merits of the claims and without being required to furnish a bond or other security. Franchisee agrees to pay all court costs and reasonable attorneys' fees incurred by Company in connection with the enforcement of this Section, including payment of all expenses for obtaining specific performance of, or an injunction against violation of, the requirements of this Section.
B. Franchisee shall notify Company immediately by telephone, and thereafter in writing, of any apparent infringement of or challenge to Franchisee's use of any of the Marks or of any claim by any person of any rights in any of the Marks. Company shall have the right to take such action as it deems appropriate in connection with the foregoing, including the right to control any settlement, litigation or proceeding arising out of any such alleged infringement, challenge or claim or otherwise relating to any of the Marks.
Source: Item 23 — Receipts (FDD pages 74–305)
What This Means (2025 FDD)
According to Aerus's 2025 Franchise Disclosure Document, franchisees must immediately inform Aerus of any challenges to their use of the Marks or any claims that someone else has rights to the Marks. Aerus has the right to take any action it deems appropriate regarding the infringement, challenge, or claim, including controlling settlements, litigation, or proceedings related to the Marks. The franchisee must also provide any necessary documents or assistance to protect and maintain Aerus's rights.
This means that an Aerus franchisee cannot independently challenge Aerus's right to the Marks. Instead, they are obligated to report any potential issues to Aerus and assist the company in defending its trademarks. This is a common provision in franchise agreements, as franchisors need to protect their brand identity and trademarks consistently across all franchise locations.
For franchisees in Minnesota, Aerus will protect the franchisee's right to use the Marks or indemnify them from any losses, costs, or expenses arising from claims related to the use of the Marks. This protection is contingent on the franchisee using the Marks as specified in the manuals or as required by Aerus or its affiliates. This clause provides an added layer of security for Minnesota franchisees, shifting the burden of trademark defense onto Aerus, provided the franchisee adheres to Aerus's guidelines for using the Marks.
Failure to comply with these requirements could result in legal action against the franchisee, as any misuse or infringement of the Marks would cause irreparable harm to Aerus. The franchisee also consents to an injunction prohibiting any conduct that infringes, abuses, or misuses the Marks, without Aerus needing to prove actual harm or provide a bond. The franchisee is responsible for covering all court costs and reasonable attorney's fees Aerus incurs while enforcing these provisions.