What protection does Better Blend offer franchisees regarding the use of principal trademarks?
Better_Blend Franchise · 2024 FDDAnswer from 2024 FDD Document
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Protection of Rights
We protect your right to use the principal trademarks listed in this Item, and we protect you against claims of infringement or unfair competition arising out of your use of the trademarks, to the extent described in this section.
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.
Superior Prior Rights and Infringing Uses
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.
Item 14 PATENTS, COPYRIGHTS AND PROPRIETARY INFORMATION
Patents
We do not own rights in, or licenses to, patents that are material to the franchise. We do not have any pending patent applications.
Copyrights
All of our original works of authorship fixed in a tangible medium of expression are automatically protected under the U.S. Copyright Act, whether or not we have obtained registrations. This includes our Brand Standards Manual as well as all other sales, training, management and other materials that we have created or will create. You may use these copyrighted materials during the term of the franchise, in a manner consistent with our ownership rights, solely for your franchised business.
We do not have any registered copyrights.
Source: Item 13 — TRADEMARKS (FDD pages 29–31)
What This Means (2024 FDD)
According to Better Blend's 2024 Franchise Disclosure Document, Better Blend will protect a franchisee's right to use the principal trademarks. Better Blend will defend the franchisee (at Better Blend's expense) against any legal action by a third party alleging infringement if the franchisee uses the trademarks according to the franchise agreement. Better Blend will also indemnify the franchisee for expenses and damages if the legal action is resolved unfavorably to the franchisee.
However, the franchise agreement does not require Better Blend to take affirmative action if Better Blend is notified of uses or claims of rights to a trademark identical or confusingly similar to a trademark licensed to the franchisee. Better Blend retains the right to control any administrative proceedings or litigation involving a trademark licensed to the franchisee. Better Blend may also require the franchisee 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 loses the right to use the unmodified or discontinued trademark, though the other rights under the franchise agreement remain unchanged.
It is important to note that Better Blend does not have a federal registration for its principal trademark. As a result, the trademark does not have as many legal benefits and rights as a federally registered trademark. If Better Blend's right to use the trademark is challenged, a franchisee may have to change to an alternative trademark, which may increase their expenses. Better Blend is aware of a prior trademark, "BETTR", that is registered with the U.S. States Patent and Trademark Office which may be considered similar. Better Blend is also aware of several food-service businesses using the name "Blend" or similar variations in different states, which may have superior rights in their local trade areas. Better Blend cannot guarantee exclusive or superior rights to their mark in all geographical areas.