Does the Best Brains franchisor have the right to exclusively control any litigation relating to 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.
Source: Item 13 — TRADEMARKS (FDD pages 29–30)
What This Means (2025 FDD)
According to the 2025 Best Brains Franchise Disclosure Document, Best Brains retains sole discretion to take action regarding any infringement of its trademarks. As a Best Brains franchisee, you are required to immediately inform Best Brains of any potential infringement or challenges to the use of any Mark. You are prohibited from communicating with anyone other than Best Brains and their counsel regarding any infringement, challenge, or claim.
Best Brains has the exclusive right to control any litigation or proceedings with the USPTO (U.S. Patent and Trademark Office) relating to any Mark. As a franchisee, you must sign documents and provide assistance that Best Brains deems necessary to protect their interests in any litigation or proceeding. This means that while you are obligated to report any potential trademark issues, Best Brains maintains complete control over the legal strategy and actions taken to address those issues.
Best Brains will indemnify a franchisee against damages for which the franchisee is held liable in a proceeding where the franchisee's use of any Mark, in compliance with the Franchise Agreement, is held to constitute trademark infringement, unfair competition or dilution. Best Brains will also reimburse the franchisee for costs reasonably incurred in the defense of any claim brought against them, provided that the franchisee has notified Best Brains of the claim or proceeding and has otherwise complied with the Franchise Agreement. Best Brains has the right to defend any proceeding arising out of the franchisee's use of any Mark pursuant to the Franchise Agreement, and, if Best Brains undertakes the defense of the proceeding, they will have no obligation to indemnify or reimburse the franchisee for any fees or disbursements of counsel the franchisee retains. This clause offers some protection to the franchisee, but it also reinforces Best Brains' control over trademark-related legal matters.