Under what conditions will Bath Tune Up indemnify a franchisee for losses related to infringement or misappropriation?
Bath_Tune_Up Franchise · 2025 FDDAnswer from 2025 FDD Document
- (b) Franchisor has advised Franchisee that the name "BATH TUNE-UP®" may have been used by other people in the conduct of a Bath Improvements business prior to Franchisor's registration of its Mark and that those prior users may have the legal right to continue to use the name "BATH TUNE- UP™" in the geographical area in which they have used it. Franchisor has further advised Franchisee that the mechanisms for determining whether a particular trade name is being used by another person (i) vary substantially from locale to locale and Franchisor cannot assure Franchisee that the name "BATH TUNE-UP™" is not currently being used in the Territory, (ii) may require a search of local trademark and Mark registration records, fictitious business name filings, or both, or some other records maintained by city, county, or state agencies or entities, and (iii) may be imperfect and fail to reveal some protected uses. Franchisee understands that, before signing this Agreement and accepting the Territory, Franchisee should have obtained advice from local counsel regarding the appropriate search and protection mechanisms and have conducted an appropriate search and investigation in the Territory to determine whether there is any prior user of the name "BATH TUNE-UP®".
- (c) The name "BATH TUNE-UP®" may be in use by other businesses in the United States who are not Franchisor's franchisees or in any way affiliated with Franchisor. Franchisee acknowledges that Franchisee is responsible for finding out whether the name "BATH TUNE-UP®" is already being used in the Territory. As a material part of the consideration for Franchisor's grant of a franchise to Franchisee, Franchisee waives any claim that Franchisor is liable to Franchisee for damages or losses resulting from any prior use of the name "BATH TUNE-UP®" by anyone else. Nothing in the preceding sentence, however, will be considered to limit a party's respective obligations under Section 6.6 below.
Source: Item 14 — PATENTS, COPYRIGHTS AND PROPRIETARY INFORMATION (FDD page 37)
What This Means (2025 FDD)
Based on the 2025 Bath Tune Up Franchise Disclosure Document, Bath Tune Up advises franchisees that the name "BATH TUNE-UP®" may have been used by others before their trademark registration. These prior users might have the legal right to continue using the name in their geographical area. Bath Tune Up cannot guarantee that the name is not currently being used in a franchisee's territory. Franchisees are advised to seek local counsel and conduct their own search to determine if there are any prior users of the name in their territory before signing the agreement.
As part of the franchise agreement, the franchisee acknowledges their responsibility for determining if the name "BATH TUNE-UP®" is already in use in their territory. The franchisee waives any claim that Bath Tune Up is liable for damages or losses resulting from prior use of the name by someone else. However, this waiver does not limit either party's obligations under Section 6.6 of the agreement.
In practical terms, this means a prospective Bath Tune Up franchisee bears the risk of trademark infringement issues in their territory. They are responsible for conducting due diligence to ensure the name is not already in use. If a prior user exists, the franchisee may not be able to claim damages from Bath Tune Up, highlighting the importance of thorough upfront investigation and legal advice.