With whom is a Big Apple Bagels franchisee prohibited from communicating regarding an infringement claim?
Big_Apple_Bagels Franchise · 2025 FDDAnswer from 2025 FDD Document
In the event Franchisee's right to the use of any name, mark or commercial symbol licensed hereunder is the subject of any claim, suit or demand (a "threat"), Franchisor shall either defend Franchisee against the threat or indemnify Franchisee from any loss, costs or expenses arising therefrom, provided and on condition, Franchisee:
- A. delivers to Franchisor prompt written notice of the threat;
- B. grants Franchisor written authorization to take unrestricted control over the defense and settlement of the threat with counsel of its choice;
- C. did not cause or give rise to the threat due to a material failure to comply with Franchisor's previously communicated trademark usage requirements;
- D. cooperates promptly and fully with Franchisor in the defense, mitigation, and/or settlement of the threat; and
- E. does not jeopardize or compromise any right, defense, obligation or liability of Franchisor, by making any statement to, or entering into any agreement with, the threatening party which does not have the advance written consent of Franchisor, unless required by applicable law."
Source: Item 22 — CONTRACTS (FDD pages 86–87)
What This Means (2025 FDD)
According to Big Apple Bagels' 2025 Franchise Disclosure Document, if a franchisee's right to use any licensed name, mark, or commercial symbol is threatened, the franchisee is prohibited from making any statement to, or entering into any agreement with, the threatening party without the advance written consent of Big Apple Bagels, unless required by applicable law.
This means that if a Big Apple Bagels franchisee faces a claim or lawsuit related to trademark or intellectual property infringement, they must not communicate or negotiate with the party making the claim without first obtaining written permission from Big Apple Bagels. This provision ensures that Big Apple Bagels maintains control over the defense and settlement of such claims, protecting the brand's interests and consistency.
The franchisee must provide prompt written notice of the threat to Big Apple Bagels and grant them unrestricted control over the defense and settlement, with counsel of their choice. The franchisee must also cooperate fully with Big Apple Bagels in the defense, mitigation, and/or settlement of the threat. Failure to comply with these conditions could jeopardize the franchisee's rights to defense or indemnity from Big Apple Bagels.