Who controls any copyright litigation related to the Bombs Away franchise?
Bombs_Away Franchise · 2024 FDDAnswer from 2024 FDD Document
12.3 Infringement.
- (a) Defense of Franchisee. If Franchisee has used the Marks in accordance with this Agreement, then (i) Bombs Away Franchising shall defend Franchisee (at Bombs Away Franchising's expense) against any Action by a third-party alleging infringement by Franchisee's use of a Mark, and (ii) Bombs Away Franchising will indemnify Franchisee for expenses and damages if the Action is resolved unfavorably to Franchisee.
- (b) Infringement by Third Party. Franchisee shall promptly notify Bombs Away Franchising if Franchisee becomes aware of any possible infringement of a Mark by a third party. Bombs Away Franchising may, in its sole discretion, commence or join any claim against the infringing party.
- (c) Control. Bombs Away Franchising shall have the exclusive right to control any prosecution or defense of any Action related to possible infringement of or by the Marks.
Source: Item 14 — Patents, Copyrights, and Proprietary Information (FDD pages 25–26)
What This Means (2024 FDD)
According to Bombs Away's 2024 Franchise Disclosure Document, Bombs Away Franchising retains the exclusive right to control any legal actions related to potential infringement of the brand's marks. This includes both initiating claims against infringing parties and defending against claims of infringement. This control extends to all aspects of the legal process, including prosecution and defense strategies.
For a Bombs Away franchisee, this means they are required to promptly notify Bombs Away Franchising if they become aware of any potential trademark infringement by a third party. However, the franchisee does not have the authority to independently pursue legal action to protect the brand's marks. Bombs Away Franchising has the sole discretion to decide whether or not to pursue a claim against the infringing party.
This arrangement is typical in franchising, as it allows the franchisor to maintain consistent brand standards and legal strategies across all franchise locations. While the franchisee is obligated to report potential infringements, the franchisor bears the responsibility and cost of taking legal action. This protects the franchisee from the financial burden and legal complexities of intellectual property litigation, while ensuring that the brand's trademarks and copyrights are consistently defended by the franchisor.
However, if the franchisee has used the marks in accordance with the franchise agreement, Bombs Away Franchising will defend the franchisee (at Bombs Away Franchising's expense) against any action by a third-party alleging infringement by the franchisee's use of a mark, and Bombs Away Franchising will indemnify the franchisee for expenses and damages if the action is resolved unfavorably to the franchisee.