What is Bombs Away Franchising obligated to do if a franchisee's trademark infringement action is resolved unfavorably?
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 22 — CONTRACTS (FDD pages 35–36)
What This Means (2024 FDD)
According to Bombs Away's 2024 Franchise Disclosure Document, Bombs Away Franchising has specific obligations regarding trademark infringement claims. If a franchisee has used the Marks in accordance with the franchise agreement and faces a third-party action alleging trademark infringement, Bombs Away Franchising will defend the franchisee at its own expense.
Furthermore, if the legal action is resolved unfavorably to the franchisee, Bombs Away Franchising will indemnify the franchisee for expenses and damages incurred. This means Bombs Away will cover the franchisee's costs if the franchisee followed the agreement.
This obligation is contingent upon the franchisee using the trademarks as specified in the franchise agreement. If the franchisee deviates from the approved usage, this protection may not apply. Bombs Away Franchising retains the exclusive right to control the defense of any action related to potential trademark infringement.