What rights does Cream have regarding actions involving copyrighted works?
Cream Franchise · 2025 FDDAnswer from 2025 FDD Document
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 retains significant control over actions involving its copyrighted works. Cream claims copyrights in various materials, including the Brand Manual, content on Digital Presences, advertising materials, and design elements within the Marks. While these copyrights have not been registered with the U.S. Copyright Office, franchisees are permitted to use these copyrighted works only as specified by Cream while operating their Shop. Cream retains the right to modify or discontinue the use of any copyrighted works.
Cream maintains control over any legal actions related to its copyrighted works, even if a franchisee brings the matter to their attention. This means that if a franchisee discovers potential copyright infringement, Cream has the sole discretion to decide whether or not to pursue legal action. Cream is not obligated to protect or defend its copyrighted works, nor is it required to take action upon notification of infringement. Furthermore, Cream is not obligated to participate in a franchisee's defense or indemnify them for damages or expenses in any legal proceeding involving the copyrighted works.
This arrangement places the responsibility and cost of defending against copyright claims solely on the franchisee, should they choose to take action independently. It is a notable risk for franchisees, as they could face legal challenges related to the use of Cream's copyrighted materials without direct support or protection from Cream. This is not uncommon in franchising, as franchisors often retain control over intellectual property matters to maintain brand consistency and manage legal risks centrally. However, the extent of control and lack of obligation to defend or indemnify franchisees is something prospective franchisees should carefully consider.
Prospective franchisees should be aware that Cream need not take affirmative action when notified of infringement of or participate in their defense, nor indemnify them for damages or expenses in a proceeding involving the copyrighted works. This could leave franchisees vulnerable to legal costs and damages if they independently address copyright issues related to Cream's materials. Franchisees should seek clarification from Cream regarding the circumstances under which Cream might offer support or protection in copyright-related legal matters.