Is Cream required to protect or defend its copyrighted works?
Cream Franchise · 2025 FDDAnswer from 2025 FDD Document
We do not own any patents that are material to the franchise. We have not filed any patent applications that are material to the franchise.
We and/or our affiliates claim copyrights in the Brand Manual, content on Digital Presences, advertising materials, any or all of the design elements contained within the Marks, and other advertising or marketing materials used in operating Jeni's Ice Creams Scoop Shops and the System. We have not registered these copyrights with the U.S. Copyright Office. You may use the copyrighted works only as we specify while operating your Shop (and must stop using them if we so direct you). We may modify or discontinue using the subject matter covered by any copyrighted works. There currently are no effective adverse determinations regarding the copyrighted materials. We are not aware of any infringing uses of our copyrighted works which could materially affect your use of the copyrighted works. We need not protect or defend our copyrighted works. We may control any action involving the copyrighted works, even if you bring the matter to our attention. We need not take affirmative action when notified of infringement of or participate in your defense nor indemnify you for damages or expenses in a proceeding involving the copyrighted works.
Source: Item 14 — PATENTS, COPYRIGHTS, AND PROPRIETARY INFORMATION (FDD pages 40–42)
What This Means (2025 FDD)
According to Cream's 2025 Franchise Disclosure Document, Cream is not required to protect or defend its copyrighted works. Cream and/or its affiliates claim copyrights in the Brand Manual, content on Digital Presences, advertising materials, any or all of the design elements contained within the Marks, and other advertising or marketing materials used in operating Jeni's Ice Creams Scoop Shops and the System. However, these copyrights have not been registered with the U.S. Copyright Office. Franchisees are permitted to use the copyrighted works only as specified by Cream while operating their Shop and must stop using them if directed to do so. Cream retains the right to modify or discontinue using any subject matter covered by copyrighted works.
Cream states that it is not aware of any infringing uses of its copyrighted works that could materially affect a franchisee's use of them. Importantly, Cream explicitly states that it does not need to protect or defend its copyrighted works. Cream retains control over any action involving the copyrighted works, even if a franchisee brings the matter to their attention. Cream is not obligated to take affirmative action when notified of infringement, participate in a franchisee's defense, or indemnify a franchisee for damages or expenses in a proceeding involving the copyrighted works.
This policy has significant implications for prospective Cream franchisees. While franchisees are granted a limited license to use Cream's copyrighted materials, they bear the risk of potential infringement claims by third parties. If a third party asserts that Cream's materials infringe on their copyright, Cream is not obligated to defend the franchisee or take any action to protect their right to use the materials. This could result in the franchisee incurring legal expenses and damages, or being forced to stop using the infringing materials.
In the franchise industry, it is common for franchisors to take some responsibility for protecting their trademarks and copyrights. Cream's decision not to protect or defend its copyrighted works is a notable deviation from this practice and represents a potential risk for franchisees. Prospective franchisees should carefully consider this risk and seek legal advice before investing in a Cream franchise.