Who has the discretion to take action regarding infringement of Afuri Ramen Dumpling's trademarks?
Afuri_Ramen_Dumpling Franchise · 2024 FDDAnswer from 2024 FDD Document
You will immediately notify us of any infringement of, or challenge to, your use of the Marks or any marks identical to or confusingly similar to the Marks, including any claims of infringement or unfair competition. While we will make reasonable efforts to protect your rights to use the Marks, we will have sole discretion to take or not to take action, as we deem appropriate. We will not be required to participate in your defense or indemnify you for expenses or damages if you are a party to an administrative or judicial proceeding involving the Marks or if the proceeding is resolved unfavorably to you. If we undertake the defense or prosecution of any litigation or administrative action involving you or any litigation or administrative action involving the Marks, you agree to execute any and all documents and to do all acts and things that in the opinion of our counsel are necessary or advisable to carry out the defense or prosecution. This may be done either in our name or in your name, as we will elect.
Source: Item 13 — Trademarks (FDD pages 37–39)
What This Means (2024 FDD)
According to Afuri Ramen Dumpling's 2024 Franchise Disclosure Document, Afuri Ramen Dumpling retains sole discretion regarding actions related to trademark infringement. While franchisees are required to notify Afuri Ramen Dumpling of any infringement or challenges to the use of the trademarks, the decision to take action, or not, rests solely with Afuri Ramen Dumpling. This includes any marks identical or confusingly similar to the Marks, including any claims of infringement or unfair competition.
This means that while Afuri Ramen Dumpling will make reasonable efforts to protect a franchisee's right to use the marks, they are not obligated to take any specific action. Furthermore, Afuri Ramen Dumpling will not be required to participate in a franchisee's defense or indemnify them for expenses or damages if the franchisee is involved in legal proceedings related to the trademarks, especially if the outcome is unfavorable for the franchisee. However, if Afuri Ramen Dumpling decides to undertake the defense or prosecution of any legal action, the franchisee is obligated to provide any necessary documents and assistance as deemed necessary by Afuri Ramen Dumpling's counsel.
This arrangement is typical in franchising, where the franchisor maintains control over its brand and trademarks. It is important for prospective Afuri Ramen Dumpling franchisees to understand that while they have the right to use the trademarks, the ultimate responsibility and authority for protecting those trademarks lies with Afuri Ramen Dumpling. Franchisees should factor this into their risk assessment, recognizing that they may bear the costs of defending their use of the marks in certain situations.