Does Brain Balance warrant that the franchisee's use of the Marks will not infringe upon the rights of any other person?
Brain_Balance Franchise · 2025 FDDAnswer from 2025 FDD Document
12. THE MARKS
- 12.01. FRANCHISEE agrees that the Marks licensed under this Agreement are owned by COMPANY, that the Marks licensed under this Agreement are valid service and/or trademarks, and that only COMPANY, its affiliates, and/or its designated franchisees shall have the right to use the Marks or any other trademarks, service marks, trade names, service names, logos, copyrights, and other marks presently existing or hereafter acquired by COMPANY for use by its franchisees or affiliates.
- 12.02. FRANCHISEE agrees that valuable good will is attached to the Marks, and any copyrights owned by COMPANY which FRANCHISEE is authorized to utilize in connection with the Franchised Business ("Copyrights") and that FRANCHISEE will use the Marks and Copyrights in all forms, whether print, electronic media or otherwise, only in the manner and to the extent specifically permitted by this Agreement or specified by COMPANY.
- 12.03. FRANCHISEE agrees that its use under this Agreement and the license granted by this Agreement for use of the Marks is non-exclusive and that COMPANY, in its sole discretion, has the right to operate or authorize others to operate businesses under the Marks on any terms and conditions COMPANY deems appropriate, subject only to the provisions of this Agreement.
- 12.04. Upon the expiration or termination of this Agreement, FRANCHISEE agrees that it shall not directly or indirectly contest the right, title, interest, validity, or ownership of COMPANY in the Marks and Copyrights.
- 12.05. FRANCHISEE shall promptly notify COMPANY of any claim, demand, or suit based upon or arising from, or any attempt by any other person or entity to use the Marks or Copyrights.
- 12.06. If COMPANY shall be a party to any litigation with respect to the Marks or Copyrights, FRANCHISEE shall execute any and all documents that are reasonable and necessary and do such things as may be reasonable and necessary for COMPANY to defend or prosecute such litigation in its sole discretion.
- 12.07. FRANCHISEE agrees that any good will associated with the Marks and Copyrights, including any good will that might be deemed to have accrued from FRANCHISEE's activities, inures directly and exclusively to the benefit of COMPANY, except as may be specifically provided to the contrary herein or by applicable law.
- 12.08. FRANCHISEE agrees that each and every detail of the System is valuable to COMPANY and to other franchisees of COMPANY in developing and maintaining uniformity
Source: Item 22 — CONTRACTS (FDD pages 70–72)
What This Means (2025 FDD)
The 2025 Brain Balance Franchise Disclosure Document does not explicitly state that Brain Balance warrants that a franchisee's use of the Marks will not infringe upon the rights of any other person. However, the FDD does address the franchisee's responsibilities regarding the use and protection of Brain Balance's trademarks and service marks.
According to the FDD, Brain Balance owns the Marks licensed under the agreement, and these Marks are considered valid service and/or trademarks. Only Brain Balance, its affiliates, and designated franchisees have the right to use these Marks. The franchisee acknowledges the goodwill attached to the Marks and agrees to use them only as permitted by the agreement or specified by Brain Balance. The franchisee's use of the Marks is non-exclusive, and Brain Balance retains the right to authorize others to operate businesses under the Marks.
The franchisee must promptly notify Brain Balance of any claim, demand, or suit arising from the use of the Marks or any attempt by another party to use them. The franchisee also agrees to execute necessary documents and actions for Brain Balance to defend or prosecute any litigation related to the Marks. All goodwill associated with the Marks, including any goodwill from the franchisee's activities, benefits Brain Balance exclusively. These stipulations suggest that Brain Balance takes measures to protect its trademarks, but there is no explicit warranty against infringement.
Prospective franchisees should seek clarification from Brain Balance regarding trademark protection and potential infringement issues. Specifically, they should inquire whether Brain Balance conducts trademark clearance searches before granting franchises and what steps Brain Balance takes to defend its franchisees against infringement claims by third parties. Understanding Brain Balance's policies and practices in this area is crucial for franchisees to assess the risks associated with using the Brain Balance Marks in their business operations.