For the Bombs Away franchise, in what manner can franchisees use copyrighted materials?
Bombs_Away Franchise · 2024 FDDAnswer from 2024 FDD Document
s order, Franchisee must temporarily cease operations of the Business and remedy the dangerous condition. Bombs Away Franchising shall have no liability to Franchisee or any other person for action or failure to act with respect to a dangerous condition.
ARTICLE 12. MARKS
12.1 Authorized Marks. Franchisee shall use no trademarks, service marks or logos in connection with the Business other than the Marks. Franchisee shall use all Marks specified by Bombs Away Franchising, and only in the manner as Bombs Away Franchising may require. Franchisee has no rights in the Marks other than the right to use them in the operation of the Business in compliance with this Agreement. All use of the Marks by Franchisee and any goodwill associated with the Marks, including any goodwill arising due to Franchisee's operation of the Business, will inure to the exclusive benefit of Bombs Away Franchising.
12.2 Change of Marks. Bombs Away Franchising may add, modify, or discontinue any Marks to be used under the System. Within a reasonable time after Bombs Away Franchising makes any such change, Franchisee must comply with the change, at Franchisee's expense.
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.
- 12.4 Name. If Franchisee is an entity, it shall not use the words "Bombs Away" or any confusingly similar words in its legal name.
ARTICLE 13. COVENANTS
13.1 Confidential Information. With respect to all Confidential Information, Franchisee shall (a) adhere to all procedures prescribed by Bombs Away Franchising for maintaining confidentiality, (b) disclose such information to its employees only to the extent necessary for the operation of the Business; (c) not use any such information in any other business or in any manner not specifically authorized in writing by Bombs Away Franchising, (d) exercise the highest degree of diligence and effort to maintain the confidentiality of all such information during and after the term of this Agreement, (e) not copy or otherwise reproduce any Confidential Information, and (f) promptly report any unauthorized disclosure or use of Confidential Information. Franchisee acknowledges that all Confidential Information is owned by Bombs Away Franchising (except for Confidential Information which Bombs Away Franchising licenses from another person or entity). This Section will survive the termination or expiration of this Agreement indefinitely.
13.2 Covenants Not to Compete.
- (a) Restriction In Term. During the term of this Agreement, neither Franchisee, any Owner, nor any spouse of an Owner (the "Restricted Parties") shall directly or indirectly have any ownership interest in, lend money or provide financial assistance to, provide any services to, or be employed by, any Competitor.
- (b) Restriction Post Term. For two years after this Agreement expires or is terminated for any reason (or, if applicable, for two years after a Transfer), no Restricted Party shall directly or indirectly have any ownership interest in, lend money or provide financial assistance to, provide any services to, or be employed by, any Competitor operating in any of Franchisee's Territory or
the territory of any other Bombs Away business operating on the date of termination or transfer, as applicable.
- (c) Interpretation. The parties agree that each of the foregoing covenants is independent of any other covenant or provision of this Agreement.
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, franchisees are granted a limited right to use the franchisor's Marks (which include copyrighted materials) strictly for operating their Bombs Away business. This usage must adhere to the specific guidelines and requirements set forth by Bombs Away Franchising. Franchisees do not acquire any ownership or independent rights to these Marks; all associated goodwill, including that generated by the franchisee's operations, accrues solely to the benefit of Bombs Away Franchising.
Specifically, Bombs Away retains the authority to modify or discontinue any of the Marks used within the franchise system. Franchisees are obligated to implement these changes at their own expense within a reasonable timeframe dictated by Bombs Away. This ensures uniformity and brand consistency across all franchise locations, but it also means franchisees must be prepared for potential costs associated with rebranding or updating materials as directed by Bombs Away.
The FDD also addresses scenarios involving infringement. If a franchisee uses the Marks in accordance with the franchise agreement and faces legal action alleging infringement, Bombs Away will defend the franchisee and indemnify them for related expenses and damages. Conversely, franchisees must promptly report any suspected infringement of the Marks by third parties to Bombs Away, which retains exclusive control over any legal action pertaining to the Marks. Upon termination of the franchise agreement, the franchisee must immediately cease all use of the Marks.
In terms of marketing, franchisees cannot undertake any marketing, advertising, or public relations activities without prior approval from Bombs Away Franchising. Bombs Away may also use any marketing materials developed by the franchisee, retaining an unlimited, perpetual, royalty-free license for such use. This highlights the importance of adhering to Bombs Away's marketing guidelines and obtaining necessary approvals to ensure compliance and consistency with the brand's overall strategy.