Does the Bombs Away franchise agreement require Bombs Away to take affirmative action when notified of copyright infringement?
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 the 2024 Bombs Away Franchise Disclosure Document, Bombs Away has certain obligations regarding infringement of marks. If a franchisee uses the marks in accordance with the franchise agreement, Bombs Away will defend the franchisee against any action by a third party alleging infringement due to the franchisee's use of a mark. Bombs Away will handle the expenses of this defense. Bombs Away will also indemnify the franchisee for expenses and damages if the action is resolved unfavorably to the franchisee.
If a franchisee becomes aware of any possible infringement of a mark by a third party, the franchisee must promptly notify Bombs Away. Bombs Away then has the sole discretion to commence or join any claim against the infringing party. Bombs Away retains the exclusive right to control any prosecution or defense of any action related to possible infringement of or by the marks.
This means that Bombs Away franchisees are protected from trademark infringement claims arising from their proper use of the Bombs Away marks. However, the franchisee must notify Bombs Away of any potential third-party infringement, and Bombs Away ultimately decides how to respond to such infringement.