Is Bombs Away required to participate in the defense of a franchisee in a copyright proceeding?
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 Bombs Away's 2024 Franchise Disclosure Document, Bombs Away is obligated to defend a franchisee in an infringement action under specific conditions. If the franchisee has used the Marks in accordance with the franchise agreement, Bombs Away will defend the franchisee at its own expense against any third-party action alleging infringement due to the franchisee's use of a Mark. Bombs Away will also cover expenses and damages if the action is resolved unfavorably to the franchisee.
This obligation is contingent upon the franchisee's proper use of Bombs Away's Marks as outlined in the franchise agreement. The agreement specifies that franchisees must only use trademarks, service marks, and logos authorized by Bombs Away and in the manner required by Bombs Away. Franchisees gain no rights in the Marks beyond using them in compliance with the agreement, and all goodwill associated with the Marks inures to Bombs Away's benefit.
Bombs Away retains exclusive control over the defense or prosecution of any action related to possible infringement of the Marks. Franchisees are required to promptly notify Bombs Away of any potential infringement by a third party, but Bombs Away has sole discretion to decide whether to pursue a claim against the infringing party. This ensures Bombs Away maintains control over its brand and legal strategy.
This arrangement is typical in franchising, where the franchisor owns the trademarks and brand identity. By retaining control over infringement matters and providing defense and indemnity to franchisees who properly use the Marks, Bombs Away protects its brand and supports its franchisees in operating their businesses. Franchisees should ensure they adhere strictly to Bombs Away's guidelines for using the Marks to be eligible for this protection.