Does Best Brains have the right to defend a claim against a franchisee for trademark infringement?

• 1. 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.
• 1. 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)