Who controls the defense of a claim against a Burger King franchisee's use of the manuals?
Burger_King Franchise · 2025 FDDAnswer from 2025 FDD Document
We have the right, but not the obligation, under the terms of the Franchise Agreement, to protect your right to use our manuals and other materials. Similarly, we have the right, but not the obligation, to protect you against claims of infringement or unfair competition arising out of your use of these items. You agree to cooperate in the prosecution of any action to prevent the infringement, imitation, illegal use or misuse of our manuals and other materials. You also agree to be named as a party in any action if requested by us. While we are not required to defend you from a claim against your use of these items, we will pay the costs of such defense (provided we are made aware of the claim on a timely basis and provided you take any action we may require regarding your use of these items), except those you independently elect to incur through counsel of your own choosing. We will control the defense.
Source: Item 14 — PATENTS, COPYRIGHTS AND PROPRIETARY INFORMATION (FDD pages 77–78)
What This Means (2025 FDD)
According to Burger King's 2025 Franchise Disclosure Document, Burger King retains control over the defense of any claim against a franchisee regarding the use of its manuals. While Burger King is not obligated to defend a franchisee against such claims, if they do undertake the defense, they will cover the costs, provided they are promptly notified of the claim and the franchisee takes any required actions related to their use of the manuals.
However, this cost coverage does not extend to expenses the franchisee independently incurs by choosing their own legal counsel. The franchisee is expected to cooperate in any action to prevent infringement or misuse of Burger King's manuals and materials, and may be required to be named as a party in such actions.
This arrangement means that while Burger King has the right, but not the obligation, to protect a franchisee's right to use their manuals, they will control the legal strategy if they choose to defend the franchisee. The franchisee's cooperation is mandatory, but their financial exposure is limited to costs from independently chosen counsel, offering a degree of protection while ensuring Burger King maintains control over its intellectual property defense.