Who has the option to control the defense of any proceeding arising from a Cream franchisee's use of the Marks?
Cream Franchise · 2025 FDDAnswer from 2025 FDD Document
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 have the option to control the defense of any legal proceeding arising from a franchisee's use of Cream's trademarks (the "Marks").
If Cream chooses to control the defense, it can select its own legal counsel and representatives. Cream will not be liable for any costs or expenses incurred by the franchisee if they choose to retain separate legal counsel.
However, Cream agrees to reimburse the franchisee for all damages and expenses incurred in a trademark infringement proceeding if the franchisee has notified Cream in a timely manner and complies with Cream's directions in responding to the proceeding. This clause highlights the importance of franchisees promptly informing Cream of any potential trademark issues and following their instructions to ensure they are eligible for reimbursement of expenses.