Is a Brain Balance franchisee's right to use the Brain Balance Marks exclusive under the franchise agreement?
Brain_Balance Franchise · 2025 FDDAnswer from 2025 FDD Document
reement Signed | | | | | But Franchise Not | | | | | Opened | | |
FRANCHISE AGREEMENT
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WITNESSETH:
WHEREAS, COMPANY has expended time, effort, and money to develop a uniform and standardized system (the "System") for the operation of Brain Balance® Centers (the "Center(s)"), which offer the Brain Balance Program®, a non-medical method of assessment and program development for individuals with developmental delays resulting from neurological and physiological imbalances using certain technology (the "Licensed Technology") (the "Business"), under the trade names and service marks "Brain Balance Program®", "Brain Balance®" with logo, and Brain Balance®" " ("Brain Balance Program®", "Brain Balance®" with logo, and Brain Balance®", and such other trade names, trademarks, service names, logos, copyrights, and other service marks now or hereafter used by COMPANY in connection with the System are hereinafter referred to as the "Marks"); and
WHEREAS, COMPANY's System includes a business strategy utilizing training methods, methodology, protocols, Licensed Technology, promotional programs, uniform standards, a confidential Operations Manual (as hereinafter defined), and other information, items, and experience that benefit the operation of the Business; and
WHEREAS, FRANCHISEE acknowledges that the Business, operated in accordance with the System and utilizing the Marks has acquired distinctive and valuable goodwill among the public; and
WHEREAS, FRANCHISEE desires to enter into the Business, to be operated in accordance with the System and utilizing the Marks, all subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual promises herein contained, it is agreed:
1. GRANT OF FRANCHISE
1.01.
Source: Item 22 — CONTRACTS (FDD pages 70–72)
What This Means (2025 FDD)
According to the 2025 Brain Balance Franchise Disclosure Document, the franchise agreement grants franchisees the right to use Brain Balance's trademarks and service marks, but it does not explicitly state that this right is exclusive. The franchisee is permitted to use the words "Brain Balance®" as part of their trade or business name, following the specific style and manner directed by Brain Balance. However, Brain Balance retains the right to direct changes in how the franchisee uses these marks, and the franchisee must comply with these directives.
The agreement specifies that franchisees cannot use the Brain Balance marks as part of their corporate or limited liability company name without prior written consent from Brain Balance. Additionally, franchisees must obtain Brain Balance's prior written approval for all content used on the franchisee's link to Brain Balance's website. This indicates that while franchisees can use the marks, Brain Balance maintains control over how they are presented and used to ensure brand consistency.
The FDD also states that the franchisee acknowledges that their franchise is one of many Brain Balance Centers using the company's service marks. It emphasizes that any failure to comply with the terms of the agreement could cause irreparable damage to other franchised or company-operated offices and to Brain Balance's overall business. This highlights the importance of adhering to Brain Balance's standards and guidelines for using the marks to protect the brand's integrity and reputation across all locations.
In summary, while Brain Balance franchisees are granted the right to use the Brain Balance marks, this right is subject to Brain Balance's control and is not explicitly defined as exclusive. Prospective franchisees should seek clarification from Brain Balance regarding the exclusivity of these rights within their specific territory to fully understand the scope of their permitted usage and any potential limitations.