Does Bombs Away Franchising have the option to initiate a claim against a party infringing on the Bombs Away marks?
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 the discretion to take legal action against third parties who infringe on their trademarks. Specifically, if a franchisee becomes aware of potential trademark infringement, they are required to promptly inform Bombs Away Franchising.
Bombs Away Franchising then has the sole discretion to decide whether to initiate or join any legal claim against the party responsible for the infringement. This means that while franchisees are obligated to report any suspected infringement, the decision to pursue legal action rests entirely with Bombs Away Franchising.
Furthermore, Bombs Away Franchising retains exclusive control over the prosecution or defense of any legal action related to trademark infringement. This control extends to both infringement by third parties and infringement by the Marks themselves. This ensures that Bombs Away maintains consistent brand protection strategies and legal positions across its franchise network.