What do the 'Marks' refer to in the Bombs Away franchise agreement?
Bombs_Away Franchise · 2024 FDDAnswer from 2024 FDD Document
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.
Source: Item 22 — CONTRACTS (FDD pages 35–36)
What This Means (2024 FDD)
According to Bombs Away's 2024 Franchise Disclosure Document, the 'Marks' refer to the trademarks, service marks, and logos that franchisees are authorized to use in connection with their Bombs Away business. The franchise agreement specifies that franchisees can only use the Marks designated by Bombs Away Franchising and must use them in the manner required by Bombs Away Franchising. Franchisees do not gain any rights to the Marks beyond using them to operate their business in accordance with the franchise agreement. All goodwill associated with the Marks, including any goodwill arising from the franchisee's operation of the business, accrues exclusively to Bombs Away Franchising.
Bombs Away Franchising retains the right to modify or discontinue any of the Marks used under the System, and franchisees are obligated to comply with these changes at their own expense within a reasonable time. If a franchisee uses the Marks in accordance with the franchise agreement and faces a third-party claim of infringement, Bombs Away Franchising will defend the franchisee and indemnify them for expenses and damages if the action is resolved unfavorably. Franchisees must promptly notify Bombs Away Franchising of any potential infringement of a Mark by a third party, and Bombs Away Franchising has the sole discretion to pursue any claim against the infringing party.
The franchise agreement also states that if the franchisee is an entity, it cannot use the words "Bombs Away" or any confusingly similar words in its legal name. Upon termination or expiration of the franchise agreement, franchisees must cease doing business under any of the Marks and take necessary steps to de-identify their location so that it no longer contains the Marks or any trade dress of a Bombs Away business. This includes notifying relevant entities of the termination of their right to use any numbers, addresses, domain names, or listings associated with the Marks and authorizing their transfer to Bombs Away Franchising.