Can a Best Brains franchisee communicate with anyone other than the franchisor and their counsel regarding trademark infringement?
Best_Brains Franchise · 2025 FDDAnswer from 2025 FDD Document
Infringements. You must immediately notify us of any apparent infringement of or challenge to your use of any Mark, or claim by any person of any rights in any Mark, and you may not communicate with any person other than us and our counsel in connection with any infringement, challenge or claim. We and our affiliates will have sole discretion to take action as we deem appropriate and the right to exclusively control any litigation or USPTO or other proceeding arising out of any such infringement, challenge or claim or otherwise relating to any Mark and you must sign any and all instruments and documents, render assistance and actions as may, in the opinion of our or our affiliates' counsel, be necessary or advisable to protect and maintain our interests in any litigation or USPTO or other proceeding or to otherwise protect and maintain our interests in the Marks.
We will indemnify you against, and reimburse you for, all damages for which you are held liable in any proceeding in which your use of any Mark, pursuant to and in compliance with the Franchise Agreement, is held to constitute trademark infringement, unfair competition or dilution, and for all costs reasonably incurred by you in the defense of any claim brought against you or in any proceeding in which you are named as a party, provided that you have timely notified us of the claim or proceeding and have otherwise complied with the Franchise Agreement. We, in our discretion, will be entitled to defend any proceeding arising out of your use of any Mark pursuant to the Franchise Agreement, and, if we undertake the defense of the proceeding, we will have no obligation to indemnify or reimburse you for any fees or disbursements of counsel you retain.
Source: Item 13 — TRADEMARKS (FDD pages 29–30)
What This Means (2025 FDD)
According to Best Brains's 2025 Franchise Disclosure Document, a franchisee is explicitly restricted in who they can communicate with regarding any potential trademark infringements. Specifically, if a Best Brains franchisee becomes aware of any apparent infringement, challenge, or claim related to the Best Brains trademarks, they are obligated to immediately notify Best Brains.
However, the franchisee's communication is limited after this initial notification. The FDD states that the franchisee "may not communicate with any person other than us and our counsel in connection with any infringement, challenge or claim." This means that a franchisee cannot discuss the matter with other franchisees, external legal counsel (unless approved by Best Brains), or any third parties without the express consent of Best Brains.
This restriction is in place to allow Best Brains and its legal team to maintain control over the handling of trademark issues, ensuring a consistent and strategic approach to protecting the brand's intellectual property. Best Brains retains the sole discretion to take action and control any related litigation. The franchisee is required to cooperate fully by signing documents and providing assistance as deemed necessary by Best Brains' counsel. This approach is typical in franchising, as franchisors need to protect their trademarks consistently across all locations.
While the franchisee is limited in communication, Best Brains offers indemnification against damages the franchisee is held liable for in a proceeding related to trademark infringement, unfair competition, or dilution, provided the franchisee has complied with the franchise agreement and has notified Best Brains in a timely manner. However, if Best Brains undertakes the defense of the proceeding, they are not obligated to reimburse the franchisee for any counsel retained by the franchisee.