Does Bens Soft Pretzels have the right to determine whether a lawsuit will be instituted for trademark infringement?
Bens_Soft_Pretzels Franchise · 2025 FDDAnswer from 2025 FDD Document
In the event any person or entity improperly uses or infringes the Trademarks or challenges your use or our use or ownership of the Trademarks, we will control all litigation and we have the right to determine whether suit will be instituted, prosecuted or settled, the terms of settlement and whether any other action will be taken.
You must promptly notify us of any such use or infringement of which you are aware or any challenge or claim arising out of your use of any Trademark.
You must take reasonable steps, without compensation, to assist us with any action we undertake.
We will be responsible for our fees and expenses with any such action, unless the challenge or claim results from your misuse of the Trademarks in violation of this Agreement, in which case you must reimburse us for our fees and expenses.
Source: Item 22 — CONTRACTS (FDD pages 46–47)
What This Means (2025 FDD)
According to Bens Soft Pretzels' 2025 Franchise Disclosure Document, Bens Soft Pretzels retains control over litigation related to trademark infringement. Specifically, Bens Soft Pretzels has the right to decide whether to initiate, pursue, or settle any lawsuit concerning the Trademarks. This means a franchisee cannot independently sue for trademark infringement; that power rests solely with Bens Soft Pretzels.
This provision is typical in franchising, as the franchisor needs to protect the brand's trademarks consistently across all locations. If a third party infringes on the Bens Soft Pretzels trademark, the franchisee must promptly inform Bens Soft Pretzels. The franchisee is obligated to assist Bens Soft Pretzels in any legal action they decide to take, without receiving compensation for their assistance.
Bens Soft Pretzels will cover the fees and expenses associated with any legal action regarding trademark infringement, unless the claim arises from the franchisee's misuse of the trademarks. In that case, the franchisee is responsible for reimbursing Bens Soft Pretzels for all fees and expenses. This protects Bens Soft Pretzels from costs incurred due to a franchisee's unauthorized use of the trademarks.