What is an Aerus franchisee's obligation if they notice an infringement of the Marks?
Aerus Franchise · 2025 FDDAnswer from 2025 FDD Document
Notwithstanding the generality of the foregoing provisions or any other contrary provision hereof, the guaranty obligation contemplated hereunder shall be non-recourse and shall not apply except in the following cases: (i) fraud or misrepresentation in connection with the execution or performance of the Franchise Agreement, the Note or any other Financing Agreements; (ii) theft or conversion of the assets of Lender or any of Lender's affiliates (including Aerus LLC) including any consigned goods or proceeds from the sale of any consigned good (which may include selling such consigned goods at prices below the required prices); (iii) misuse or infringement of any trademark or other item of intellectual property or right owned or licensed by Lender or any of Lender's affiliates (including Aerus LLC); or (iv) breach or violation of any license granted under the Franchise Agreement concerning such trademarks and intellectual property.
Source: Item 23 — Receipts (FDD pages 74–305)
What This Means (2025 FDD)
The 2025 Aerus Franchise Disclosure Document does not explicitly state the franchisee's obligation upon noticing an infringement of the Marks. However, the document does state that misuse or infringement of any trademark or other item of intellectual property or right owned or licensed by Aerus LLC can result in a non-recourse guaranty obligation.
While the FDD does not detail the franchisee's required actions, it emphasizes Aerus's control over the Marks. The agreement specifies that franchisees can only use the Marks in strict accordance with the franchise agreement, policies, procedures, manuals, and any specific guidelines imposed by Aerus. Franchisees are also prohibited from using any trade name, trademark, or service mark other than the Marks in connection with the Franchised Business.
Given the lack of specific information on infringement obligations in the FDD, prospective Aerus franchisees should directly ask the franchisor about the expected procedures for reporting and handling potential trademark infringements. Understanding these obligations is crucial for protecting both the franchisee's and Aerus's interests in maintaining the integrity of the brand and its associated intellectual property.