What are the potential consequences for Better Blend franchisees if the right to use the trademark is challenged?
Better_Blend Franchise · 2024 FDDAnswer from 2024 FDD Document
The following is the principal trademark that we license to you. This trademark is owned by our affiliate, Better Blend Nutrition, LLC. We do not have a federal registration for our principal trademark. Therefore, our trademark does not have many legal benefits and rights as a federally registered trademark. If our right to use the trademark is challenged, you may have to change to an alternative trademark, which may increase your expenses. An application for registration on the Principal Register of the United States Patent and Trademark Office has been filed.
We are aware of a prior trademark registered with U.S. States Patent and Trademark Office which may be considered similar in appearance, sound, and commercial impression: "BETTR" which is in the category of "Fruit beverages; fruit-based beverages; fruit-flavored beverages; vegetable juices; vegetable-based juices; non-alcoholic beverages containing fruit juices; nonalcoholic beverages, namely, carbonated beverages; non-alcoholic malt beverages; proteinenriched sports beverages; smoothies; soy-based beverages not being milk substitutes; water beverages."
We are also aware of the following food-service businesses: (1) "Blend" or "Blend. Nutrition" in Weymouth, Massachusetts, (2) "Blend Nutrition" in Carson City, Nevada, (3) "Blend Nutrition & Energy" in Round Rock, Texas, and (4) "Blend Smoothie and Salad Bar" with six locations in New York state. These brands may have superior rights in their local trade areas. There may be other uses of marks similar to our trademarks that may affect your use of our trademarks. We cannot represent that we have exclusive or superior rights to our mark in all geographical areas.
The franchise agreement obligates you to notify us of the use of, or claims of rights to, a trademark identical to or confusingly similar to a trademark licensed to you. The franchise agreement does not require us to take affirmative action when notified of these uses or claims. We have the right to control any administrative proceedings or litigation involving a trademark licensed by us to you.
If you use our trademarks in accordance with the franchise agreement, then (i) we will defend you (at our expense) against any legal action by a third party alleging infringement by your use of the trademark, and (ii) we will indemnify you for expenses and damages if the legal action is resolved unfavorably to you.
Under the franchise agreement, we may require you to modify or discontinue using a trademark, at your expense. You will have a reasonable period of time to comply with the change, not to exceed 90 days. After such period, you would no longer have the right to use the unmodified or discontinued trademark. Your rights under the franchise agreement do not change, other than the modification or discontinuation of the trademark.
Source: Item 13 — TRADEMARKS (FDD pages 29–31)
What This Means (2024 FDD)
According to Better Blend's 2024 Franchise Disclosure Document, because Better Blend does not have a federal registration for its principal trademark, it lacks many legal benefits and rights typically associated with federally registered trademarks. Consequently, if Better Blend's right to use its trademark is challenged, franchisees may be required to switch to an alternative trademark. This change could lead to increased expenses for the franchisee as they rebrand their location. An application for registration on the Principal Register of the United States Patent and Trademark Office has been filed.
Better Blend is aware of a prior trademark, "BETTR", registered with the U.S. States Patent and Trademark Office, which may be considered similar in appearance, sound, and commercial impression. Better Blend is also aware of several food-service businesses using similar names, such as "Blend" or "Blend. Nutrition" in Weymouth, Massachusetts; "Blend Nutrition" in Carson City, Nevada; "Blend Nutrition & Energy" in Round Rock, Texas; and "Blend Smoothie and Salad Bar" with six locations in New York state. These businesses may have superior rights in their local trade areas.
Better Blend cannot guarantee exclusive or superior rights to its mark in all geographical areas. Franchisees are obligated to notify Better Blend of any use of, or claims to, a trademark identical or confusingly similar to the trademarks licensed to them. Better Blend has the right to control any administrative proceedings or litigation involving a trademark licensed to its franchisees. If a franchisee uses Better Blend's trademarks in accordance with the franchise agreement, Better Blend will defend the franchisee against any legal action alleging infringement and indemnify them for expenses and damages if the legal action is resolved unfavorably to the franchisee.
Better Blend may require franchisees to modify or discontinue using a trademark, at the franchisee's expense, providing a reasonable compliance period not exceeding 90 days. After this period, the franchisee would no longer have the right to use the unmodified or discontinued trademark. However, the franchisee's rights under the franchise agreement remain unchanged, aside from the trademark modification or discontinuation.