Does Burros Fries acknowledge the possibility of pre-existing third-party users of trademarks similar to the Burros Fries Names and Marks?
Burros_Fries Franchise · 2024 FDDAnswer from 2024 FDD Document
A. Names and Marks are Owned by Franchisor
We warrant with respect to the proprietary Names and Marks that:
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- We will take such steps as we deem reasonably necessary to preserve and protect the ownership and validity of such Names and Marks; and
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- Franchisee acknowledges that there may be third party pre-existing users or applicants/registrants of trademarks, trade names, or business names similar to the Names and Marks. We and Franchisee shall investigate such use, applications, or registrations, if any, and we shall in our sole discretion decide on the appropriate action to be taken. Any unsuccessful challenge made by us shall not constitute a ground for the termination of this Agreement. In the event we determine in our sole judgment that challenging any such third party's use of the Marks will not likely be successful, or would not be economically feasible to achieve, or if Franchisee shall be required to cease using the Marks (or any of them) by court order, or as a result of any settlement of any such trademark claim by a prior registrant or any pre-existing user, or any other such trademark claim, or if we shall deem it necessary or appropriate to change the name of the Franchise in order to mitigate any potential exposure or damages arising under any trademark claim, Franchisee shall promptly change the name of its Franchise, and thereafter utilize an alternative name established by us. We shall not otherwise be liable for any losses or any consequential damages, incidental damage, exemplary damages, special damages, including lost future profits, resulting from or arising out of any trademark service mark, and/or unfair competition claim(s). We shall have no obligation to reimburse the Franchisee for any costs, causes of action, damages, demands, expenses, fines, liabilities, or penalties, arising out of such a trademark, service mark, logo or trade name change.
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- We will use and permit Franchisee and other franchisees to use the Marks in compliancewith the System and standards attendant thereto and contained in the Operating Manual as well as our policy statements, which underlie the goodwill associated with and symbolized by the Names and Marks.
Source: Item 22 — CONTRACTS (FDD page 53)
What This Means (2024 FDD)
According to the 2024 Burros Fries Franchise Disclosure Document, Burros Fries acknowledges the possibility of third-party pre-existing users or applicants/registrants of trademarks, trade names, or business names similar to the Burros Fries Names and Marks. Burros Fries states that it and the franchisee will investigate any such use, applications, or registrations. Burros Fries retains the sole discretion to decide on the appropriate action to be taken.
If Burros Fries unsuccessfully challenges a third party's use of similar marks, this will not be grounds for the franchisee to terminate the Franchise Agreement. If Burros Fries determines that challenging a third party's use of the Marks will not likely be successful, or would not be economically feasible, or if the franchisee is required to cease using the Marks due to a court order or settlement, or if Burros Fries deems it necessary to change the name of the Franchise to mitigate potential damages, the franchisee must promptly change the name of its Franchise and use an alternative name established by Burros Fries.
Burros Fries will not be liable for any losses or damages resulting from trademark claims and has no obligation to reimburse the franchisee for any costs associated with a trademark or trade name change. This allocation of risk is typical in franchising, where the franchisor controls the brand's trademarks but franchisees operate individual locations and could be affected by local trademark disputes.