Must a Best Brains franchisee notify the franchisor immediately of any challenge to their use of any Mark?
Best_Brains Franchise · 2025 FDDAnswer from 2025 FDD Document
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.
If it becomes advisable at any time in our sole discretion for us and/or you to modify or discontinue use of any Mark, and/or use one or more additional or substitute trade or service marks, you must comply with our instructions within a reasonable time after notice by us, and our sole obligation in any event will be to reimburse you for your out-of-pocket costs of complying with this obligation.
Source: Item 13 — TRADEMARKS (FDD pages 29–30)
What This Means (2025 FDD)
According to Best Brains's 2025 Franchise Disclosure Document, a franchisee must immediately inform Best Brains of any potential infringement or challenge to their use of any Mark. Furthermore, the franchisee is prohibited from communicating with anyone other than Best Brains and their counsel regarding the infringement, challenge, or claim. This requirement ensures that Best Brains maintains control over the defense and protection of its trademarks.
Best Brains retains the sole discretion to take action and the exclusive right to control any litigation or proceedings related to the Marks. The franchisee is obligated to sign any documents and provide assistance as deemed necessary by Best Brains' counsel to protect the Marks. This clause underscores the importance of the trademarks to the Best Brains system and the franchisor's active role in safeguarding them.
Best Brains will indemnify the franchisee against damages they are held liable for in proceedings where their use of any Mark, in compliance with the Franchise Agreement, is deemed trademark infringement, unfair competition, or dilution. This indemnification also covers costs reasonably incurred by the franchisee in defending against any claim, provided that the franchisee has promptly notified Best Brains of the claim and has otherwise complied with the Franchise Agreement. However, if Best Brains undertakes the defense, they are not obligated to reimburse the franchisee for their counsel's fees.
If Best Brains decides that it is advisable to modify or discontinue the use of any Mark, the franchisee must comply with their instructions within a reasonable time after receiving notice. In such cases, Best Brains's only obligation is to reimburse the franchisee for their out-of-pocket costs incurred in complying with this obligation. This provision highlights the potential for changes to the Marks and the franchisee's responsibility to adapt accordingly, with limited financial support from Best Brains.