Does Aplus guarantee that all of its Marks will be registered, and what happens if they are not?
Aplus Franchise · 2024 FDDAnswer from 2024 FDD Document
6.1.1. Franchisor represents that it or its Affiliate owns and/or has applied for registration of certain of the Marks with the appropriate authorities. Franchisee acknowledges that Franchisor has not made any representation or warranty to the effect that the Marks which have not been registered shall be registered or are able to be registered therein, and the failure to obtain registrations of any of the Marks shall not be deemed to be a breach of the terms of this Agreement by Franchisor. Moreover, Franchisee shall cooperate with Franchisor and its representatives, at Franchisor's expense, in the prosecution of any applications or registrations of any Marks which have been filed with the appropriate authorities. Franchisor undertakes to keep Franchisee informed of the progress in obtaining registration of the Marks, and any delay or inability to register any Mark shall not constitute a breach of this Agreement.
Source: Item 23 — RECEIPT (FDD pages 68–302)
What This Means (2024 FDD)
According to Aplus's 2024 Franchise Disclosure Document, Aplus does not guarantee that all of its marks will be registered. Aplus represents that it or its affiliates own and/or have applied for registration of certain marks with the appropriate authorities. However, Aplus explicitly states that it does not warrant that unregistered marks will be registered or are even able to be registered.
According to the FDD, the failure to obtain registration of any of the marks does not constitute a breach of the franchise agreement by Aplus. The franchisee is required to cooperate with Aplus, at Aplus's expense, in pursuing any applications or registrations of marks that have been filed. Aplus also commits to keeping the franchisee informed about the progress of obtaining registration for the marks.
This means that a prospective Aplus franchisee cannot rely on all of the brand's marks being officially registered. If registration is not obtained for certain marks, this will not be considered a violation of the agreement by Aplus. The franchisee must still use only the marks approved by Aplus and is not allowed to use any marks without authorization. The franchisee also cannot contest the validity or ownership of any of the marks, even if they are not registered.