Who has the right to commence a claim against a party infringing on a Bombs Away mark?
Bombs_Away Franchise · 2024 FDDAnswer from 2024 FDD Document
- (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.
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 sole discretion to commence or join any claim against a third party that is possibly infringing on a Bombs Away mark. However, the franchisee is responsible for promptly notifying Bombs Away Franchising if they become aware of any potential infringement.
This means that while a Bombs Away franchisee is expected to be vigilant about protecting the brand's trademarks, the ultimate decision to pursue legal action rests with the franchisor. The franchisee does not have the independent right to sue an infringing party. This is a common arrangement in franchising, as it allows the franchisor to maintain consistent brand protection standards across all franchise locations.
For a prospective Bombs Away franchisee, this arrangement offers both benefits and potential drawbacks. On the one hand, the franchisee is not burdened with the cost and responsibility of pursuing infringement claims. On the other hand, the franchisee has no direct control over whether or not action is taken against an infringer, even if the infringement is significantly impacting their business. It would be prudent for a prospective franchisee to discuss with Bombs Away what criteria they use to determine whether to pursue an infringement claim.