Is Chocolate Fish Coffee required to participate in the defense of a franchisee in a copyright proceeding?
Chocolate_Fish_Coffee Franchise · 2024 FDDAnswer from 2024 FDD Document
- (a) Defense of Franchisee. If Franchisee has used the Marks in accordance with this Agreement, then (i) Chocolate Fish Franchising shall defend Franchisee (at Chocolate Fish Franchising's expense) against any Action by a third-party alleging infringement by Franchisee's use of a Mark, and (ii) Chocolate Fish Franchising will indemnify Franchisee for expenses and damages if the Action is resolved unfavorably to Franchisee.
- (b) Infringement by Third Party. Franchisee shall promptly notify Chocolate Fish Franchising if Franchisee becomes aware of any possible infringement of a Mark by a third party. Chocolate Fish Franchising may, in its sole discretion, commence or join any claim against the infringing party.
- (c) Control. Chocolate Fish Franchising shall have the exclusive right to control any prosecution or defense of any Action related to possible infringement of or by the Marks.
Source: Item 14 — PATENTS, COPYRIGHTS AND PROPRIETARY INFORMATION (FDD pages 31–32)
What This Means (2024 FDD)
According to Chocolate Fish Coffee's 2024 Franchise Disclosure Document, Chocolate Fish Coffee is required to defend a franchisee against a third-party action alleging infringement if the franchisee has used the marks in accordance with the franchise agreement. This defense will be at Chocolate Fish Coffee's expense. Chocolate Fish Coffee will also indemnify the franchisee for expenses and damages if the action is resolved unfavorably to the franchisee.
This obligation is contingent upon the franchisee's proper use of the trademarks as outlined in the agreement. If the franchisee deviates from the approved usage, Chocolate Fish Coffee may not be obligated to provide a defense or indemnification. It is important for prospective franchisees to adhere strictly to the brand's guidelines regarding trademark usage to ensure they are protected under this clause.
Chocolate Fish Coffee retains the exclusive right to control any prosecution or defense related to possible infringement of the marks. The franchisee is required to promptly notify Chocolate Fish Coffee if they become aware of any potential infringement of a mark by a third party. This allows Chocolate Fish Coffee to take appropriate action to protect its brand and intellectual property.