If a Best Brains franchisee discovers an infringing use of the proprietary materials, what should they do?
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.
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 14 — PATENTS, COPYRIGHTS, AND PROPRIETARY INFORMATION (FDD page 30)
What This Means (2025 FDD)
According to Best Brains' 2025 Franchise Disclosure Document, if a franchisee notices any apparent infringement or challenges to the use of any Mark, or any claims by another person regarding rights to any Mark, the franchisee must immediately notify Best Brains. The franchisee is not allowed to communicate with anyone other than Best Brains and their counsel regarding the infringement, challenge, or claim.
Best Brains and its affiliates have the sole discretion to take action as they deem appropriate. They also have the exclusive right to control any litigation or proceedings arising from the infringement, challenge, or claim, or otherwise relating to any Mark. The franchisee is required to sign all necessary documents and provide assistance as deemed necessary by Best Brains' counsel to protect and maintain their interests in any litigation or proceeding, or to otherwise protect and maintain their interests in the Marks.
Best Brains will indemnify the franchisee against all damages for which the franchisee is held liable in any 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 all costs reasonably incurred in defending any claim or proceeding in which the franchisee is named as a party, provided that the franchisee has timely 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, they have no obligation to indemnify or reimburse the franchisee for any fees or disbursements of counsel the franchisee retains.
If Best Brains determines it advisable to modify or discontinue the use of any Mark, or to use additional or substitute trade or service marks, the franchisee must comply with Best Brains' instructions within a reasonable time after notice. Best Brains' sole obligation in such an event is to reimburse the franchisee for their out-of-pocket costs of complying with this obligation.