Who has the exclusive right to control litigation arising from infringement of Cream's Marks or System?
Cream Franchise · 2025 FDDAnswer from 2025 FDD Document
You agree 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. We and our affiliates may take the action we or they 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 agree to sign any documents and take any other action that, in the opinion of our and our affiliates' attorneys, are necessary or advisable to protect and maintain our and our affiliates' (as applicable) interests in the Marks and the System.
If we are unable for any reason, after reasonable effort, to secure your signature on any document needed in connection with the actions specified in this Section 5.C, you hereby irrevocably designate and appoint us and our duly authorized officers and agents as your agent and attorney in fact, which appointment is coupled with an interest and is irrevocable, to act for and on your behalf to execute, verify, and file any such documents and to do all other lawfully permitted acts to further the purposes of this Section 5.C with the same legal force and effect as if executed by you.
We agree to reimburse you for all damages and expenses that you incur in any trademark infringement proceeding disputing your authorized use of the Marks under this Agreement if you have timely notified us of, and comply with our directions in responding to, the proceeding. At our option, we and our affiliates and may control the defense of any proceeding arising from your use of the Marks under this Agreement. If we choose to control the defense of any such proceeding, we may choose our own legal counsel and other similar representatives, and we 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 23 — RECEIPTS (FDD pages 61–192)
What This Means (2025 FDD)
According to Cream's 2025 Franchise Disclosure Document, Cream and its affiliates retain exclusive control over any litigation or legal proceedings related to the infringement, challenge, or claim concerning Cream's trademarks (Marks) or System. This means that Cream, not the franchisee, decides whether to pursue legal action, how to conduct the litigation, or whether to settle.
As a Cream franchisee, you are obligated to notify Cream immediately of any potential infringement or challenges to the use of Cream's Marks or System. You must refrain from communicating with any party other than Cream, its affiliates, and their attorneys regarding such matters. Additionally, you are required to sign any documents and take any actions deemed necessary by Cream's attorneys to protect Cream's interests in its Marks and System.
Cream agrees to reimburse you for damages and expenses incurred in a trademark infringement proceeding if the dispute concerns your authorized use of the Marks, provided you promptly notify Cream and follow their directions. Cream also has the option to control the defense of any proceeding arising from your use of the Marks, and if they choose to do so, they can select their own legal counsel without liability for any costs you incur by retaining separate counsel. This arrangement is typical in franchising, as it allows the franchisor to protect the brand's intellectual property consistently across all franchise locations.