Who has the right to control litigation caused by infringement of Baya Bar's Marks?
Baya_Bar Franchise · 2024 FDDAnswer from 2024 FDD Document
sch intends to file all affidavits and other documents required to maintain his interest in and to the Marks.
You must immediately notify us of any apparent infringement of the Marks or challenge to your use of any of the Marks or claim by any person of any rights in any of the Marks. You are not permitted to communicate with any person other than us, or any designated affiliate, our counsel and your counsel involving any infringement, challenge or claim. We can take action and have the right to exclusively control any litigation or USPTO or other administrative or agency proceeding caused by any infringement, challenge or claim or otherwise relating to any of the Marks. You must sign any and all documents, and do what may, in our counsel's opinion, be necessary or advisable to protect our interests in any litigation or USPTO or other administrative or agency proceeding or to otherwise protect and maintain our interests and the interests of any other person or entity (including any affiliate) having an interest in the Marks.
We will indemnify you against and reimburse you for all damages for which you are held liable for your use of any of the Marks, provided that your conduct in the proceeding and use of the Marks is in full compliance with the terms of the Franchise Agreement.
Except as provided above, we are not obligated by the Franchise Agreement to protect any rights granted to you to use the Marks or to protect you against claims of infringement or unfair competition with respect to them. Although we are not contractually obligated to protect the Marks or your right to use them, as a matter of corporate policy we intend to defend the Marks vigorously.
Source: Item 13 — TRADEMARKS (FDD pages 40–41)
What This Means (2024 FDD)
According to Baya Bar's 2024 Franchise Disclosure Document, Baya Bar retains the exclusive right to control any litigation or proceedings related to infringement, challenges, or claims against its trademarks. This means that if someone infringes on Baya Bar's trademarks, Baya Bar, not the franchisee, will decide how to handle the legal action.
As a franchisee, you are required to immediately notify Baya Bar of any potential infringement or challenges to the use of the marks. You are also obligated to refrain from communicating with any party other than Baya Bar, its designated affiliates, or legal counsel regarding any infringement, challenge, or claim. Furthermore, you must sign any documents and take any actions deemed necessary by Baya Bar's counsel to protect their interests in any litigation or administrative proceedings.
Baya Bar will indemnify and reimburse franchisees for damages they are held liable for due to their use of the marks, provided that the franchisee's conduct and use of the marks comply with the Franchise Agreement. However, Baya Bar is not obligated to protect franchisees against claims of infringement or unfair competition, although they state that it is their corporate policy to vigorously defend the marks. This indicates that while Baya Bar intends to protect its trademarks, the Franchise Agreement does not guarantee such protection.
This allocation of control and responsibility is fairly typical in franchising. Franchisors generally maintain control over trademark litigation to ensure consistent brand protection and legal strategy. Franchisees benefit from this arrangement as they are typically indemnified against damages resulting from authorized use of the marks, but they must adhere to the franchisor's directives in any legal matters.