Does Cream have any obligation to defend the Cream trademarks or system from valid claims of prior use?
Cream Franchise · 2025 FDDAnswer from 2025 FDD Document
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.
We are not aware of any superior rights or infringing uses that could materially affect your use of the Marks in any state where your Shop may be located.
Source: Item 13 — TRADEMARKS (FDD pages 39–40)
What This Means (2025 FDD)
According to Cream's 2025 Franchise Disclosure Document, Cream has no obligation to defend its trademarks or system against valid claims of prior use or lawful concurrent use by others. However, if a trademark infringement proceeding arises from a franchisee's authorized use of Cream's marks, and the franchisee has promptly notified Cream and followed their directions, Cream will reimburse the franchisee for all damages and expenses incurred in defending the proceeding.
This means that while Cream is not proactively obligated to defend against prior use claims, they may provide financial support to franchisees facing infringement lawsuits under specific conditions. Cream retains the right to control any litigation concerning the trademarks or system and is not liable for costs incurred by franchisees who choose to retain separate legal counsel when Cream is controlling the defense.
Cream states that they are not aware of any superior rights or infringing uses that could materially affect a franchisee's use of the marks in any state where a shop may be located. This statement suggests Cream has conducted some due diligence to ensure the trademarks' validity and protect franchisees from potential legal challenges. However, franchisees should still conduct their own due diligence and be aware of the risks associated with trademark use.