What is a Big Apple Bagels franchisee required to do if there is an apparent infringement of any Mark?
Big_Apple_Bagels Franchise · 2025 FDDAnswer from 2025 FDD Document
Section 5 of the BAGELS Franchise Agreement on Marks is amended by the addition of the following language to the original language that appears therein:
"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 the 2025 Big Apple Bagels FDD, if a franchisee's right to use any name, mark, or commercial symbol is threatened by a claim, suit, or demand, Big Apple Bagels has the option to either defend the franchisee against the threat or indemnify them for any resulting losses, costs, or expenses. However, this support is conditional.
To be eligible for defense or indemnification, the Big Apple Bagels franchisee must promptly provide written notice of the threat to the franchisor. The franchisee must also grant Big Apple Bagels unrestricted control over the defense and settlement of the threat, allowing them to choose their legal counsel. Furthermore, the franchisee must not have caused the threat due to a significant failure to comply with Big Apple Bagels' previously communicated trademark usage requirements.
Additionally, the franchisee is required to cooperate fully and promptly with Big Apple Bagels in the defense, mitigation, and/or settlement of the threat. The franchisee must not take any actions that could jeopardize or compromise Big Apple Bagels' rights, defenses, obligations, or liabilities. This includes refraining from making statements to or entering into agreements with the threatening party without Big Apple Bagels' prior written consent, unless required by law.