Who has the right to control litigation arising out of infringement of Best Brains' Marks?
Best_Brains Franchise · 2025 FDDAnswer from 2025 FDD Document
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- Duty to Notify. You must immediately notify us in writing of any apparent infringement of or challenge to your use of any Marks, or claim by any person of any rights in any Marks or any similar trade name, trademark or service mark of which you become aware. In the event of any such infringement, challenge, or claim, you shall not communicate with any person other than us and our counsel.
- i. We and our affiliates have sole discretion to take such action as we deem appropriate and the right to exclusively control any litigation, U.S. Patent and Trademark Office ("USPTO") proceeding or other administrative proceeding arising out of any such infringement, challenge or claim or otherwise relating to any Marks.
- ii. You agree to execute any and all instruments and documents, render such assistance and do such acts and things as may, in the opinion of our counsel, or the counsel of our affiliates, be necessary or advisable to protect and maintain our interests in any such litigation, USPTO proceeding or other administrative proceeding or to otherwise protect and maintain the interests of us and our affiliates in the Marks.
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- Indemnification. If your use of any Marks in compliance with this Agreement is held to constitute trademark infringement, unfair competition, or dilution, we will indemnify you for all damages for which you are held liable. We will also reimburse you for all costs reasonably incurred in the defense of any such claim provided that a) you timely notified us of such claim or proceeding, b) You otherwise complied with this Agreement and, c) We have the right to defend any such claim.
If we undertake to defend such claim, then we have no obligation to indemnify or reimburse you for any fees or disbursements of counsel you retain.
Source: Item 23 — RECEIPTS (FDD pages 42–190)
What This Means (2025 FDD)
According to Best Brains' 2025 Franchise Disclosure Document, Best Brains and its affiliates have the sole right to control any litigation, U.S. Patent and Trademark Office (USPTO) proceeding, or other administrative proceeding arising out of infringement, challenge, or claim relating to any of its Marks. This means that Best Brains, not the franchisee, has the authority to decide how to respond to any legal issues concerning the trademarks.
As a Best Brains franchisee, you are obligated to notify Best Brains immediately in writing of any apparent infringement or challenge to the use of any Marks, or any claim by any person of rights in any Marks or any similar trade name, trademark, or service mark that you become aware of. You are not allowed to communicate with anyone other than Best Brains and its counsel regarding such matters. Furthermore, you must assist Best Brains by executing documents and performing actions necessary to protect and maintain their interests in any litigation or USPTO proceeding.
Best Brains will indemnify a franchisee for all damages they are held liable for if their use of any Marks 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 the defense of any such claim, provided that the franchisee timely notified Best Brains of such claim or proceeding, complied with the Agreement, and Best Brains has the right to defend any such claim. However, if Best Brains undertakes to defend such claim, they have no obligation to indemnify or reimburse the franchisee for any fees or disbursements of counsel the franchisee retains. This is a fairly typical arrangement in franchising, as franchisors need to protect their brand's intellectual property but also need franchisees to use the brand assets correctly.