What actions are Cream and its affiliates allowed to take regarding litigation arising from infringement claims related to the Cream trademarks or system?
Cream Franchise · 2025 FDDAnswer from 2025 FDD Document
You will be required to notify us immediately of any apparent infringement or challenge to your use of the Marks or the System, or of any person's claim of any rights in the Marks or the System, and not to communicate with any person other than us, our affiliates and our and their attorneys, and your attorneys, regarding any infringement, challenge, or claim. The Franchise Agreement does not require us to take affirmative action when notified of these uses or claims. We and our affiliates may take the action we deem appropriate (including no action) and control exclusively any litigation or other legal or administrative proceeding arising from any infringement, challenge, or claim or otherwise concerning the Marks or the System. You must sign any documents and take any other action that we deem necessary or advisable to protect and maintain our and our affiliates' (as applicable) interests in the Marks and the System. Neither we nor our affiliates will have any obligation to defend the Marks or the System from valid claims of prior use or of lawful concurrent use by others.
We will reimburse you for all damages and expenses that you incur in defending any trademark infringement proceeding disputing your authorized use of the Marks under the Franchise Agreement if you have timely notified us of, and comply with our directions in responding to, the proceeding, and are in compliance with your Franchise Agreement. We are not required to assume your defense. If we or our affiliates choose to control the defense of any such proceeding, such person may choose its own legal counsel and other similar representatives, and it will not be liable to you or any of your affiliates or representatives for any costs or expenses incurred on the basis of any additional or separate legal counsel or similar representatives you or they retain.
Source: Item 13 — TRADEMARKS (FDD pages 39–40)
What This Means (2025 FDD)
According to Cream's 2025 Franchise Disclosure Document, Cream and its affiliates have broad discretion regarding litigation related to infringement claims. Cream is not obligated to take any affirmative action when notified of potential infringements or claims against the trademarks or system. Cream and its affiliates have the right to take whatever action they deem appropriate, including taking no action at all. Cream maintains exclusive control over any litigation or legal proceedings arising from infringement claims, challenges, or any other issues concerning the trademarks or the Cream system.
As a Cream franchisee, you are required to immediately notify Cream of any apparent infringement or challenges to the use of the marks or system. You must also notify Cream of any claims of rights in the marks or system. The FDD stipulates that franchisees should not communicate with anyone other than Cream, its affiliates, their attorneys, and the franchisee's own attorneys regarding any infringement, challenge, or claim. Franchisees are obligated to sign documents and take actions deemed necessary by Cream to protect their interests in the marks and the system.
Cream may choose to control the defense of any proceeding and select its own legal counsel. Cream will not be liable for any costs or expenses incurred if a franchisee chooses to retain additional or separate legal counsel. However, Cream will reimburse a franchisee for all damages and expenses incurred in defending a trademark infringement proceeding if the franchisee has notified Cream in a timely manner, complied with Cream's directions, and is in compliance with the Franchise Agreement. Cream is not required to assume the franchisee's defense.