Who maintains the exclusive discretion to take action regarding trademark infringement, challenges, or claims related to the Deck Medic Licensed Marks?
Deck_Medic Franchise · 2024 FDDAnswer from 2024 FDD Document
You are required to provide us with written notice of any claims that you may become aware of respecting the Licensed Marks, including your use of the Licensed Marks and/or any claim associated with a third party's use of a trademark that is identical or confusingly similar to the Licensed Marks. We maintain the exclusive discretion to take any and all actions, or to refrain from any action, that we believe to be appropriate in response to any trademark infringement, challenge or claim. As between us, we possess the sole right to exclusively control any and all litigation, legal proceedings, administrative proceedings and/or settlement(s) involving any actual or alleged infringement, challenge or claim relating to the Licensed Marks. You must sign all documents, instruments and agreements and undertake the actions that we, with the advice of our legal counsel, determine to be necessary or advisable for the protection and/or maintenance of our interests in the Licensed Marks in any legal proceeding, administrative proceeding or as may be otherwise determined by us. As to the foregoing, we will reimburse you for the reasonable out-of-pocket administrative expenses that you incur and pay in complying with our written instructions.
We will protect your right to use the Licensed Marks and other related rights and protect you against claims of infringement and unfair competition related to the Licensed Marks, provided that you use the Licensed Marks in accordance with the terms of your Franchise Agreement, as designated by us in the Manuals, and otherwise, as we instruct you. We will indemnify you against direct damages for trademark infringement in a proceeding arising out of your use of the Licensed Marks, provided your use of the Licensed Marks comply with the terms of your Franchise Agreement, the Manuals, our written instructions, and that you have timely notified us of the claim, have
given us sole control of the defense and settlement of the claim, and you are in compliance with your Franchise Agreement. If we defend the claim, we have no obligation to indemnify or reimburse you with respect to any fees or disbursements of any attorney that you retain.
If any third party establishes, to our satisfaction and in our sole discretion, that its rights to the marks are, for any legal reason, superior to any of our rights, then we will modify and/or replace the Licensed Marks and you must use the variances or other service marks, trademarks or trade names required by and as determined by us. Our sole liability and obligation in such event is to reimburse you for the direct out-of-pocket costs of complying with this obligation, which you must document to our satisfaction, including, by way of example, alterations in signage and replacement of marketing materials. There are no agreements currently in effect that significantly limit our rights to use or license the use of the Licensed Marks in any manner material to you.
Source: Item 13 — TRADEMARKS (FDD pages 32–33)
What This Means (2024 FDD)
According to Deck Medic's 2024 Franchise Disclosure Document, Deck Medic retains exclusive discretion regarding actions related to trademark issues. Specifically, if a franchisee becomes aware of any claims related to the Deck Medic Licensed Marks or a third party's use of a similar trademark, they must notify Deck Medic in writing.
Deck Medic has the sole right to decide what actions to take, or not take, in response to any trademark infringement, challenge, or claim. Deck Medic also maintains the exclusive right to control any litigation, legal proceedings, administrative proceedings, and settlements related to these issues. The franchisee is obligated to sign documents and take actions deemed necessary by Deck Medic and its legal counsel to protect Deck Medic's interests in the Licensed Marks. Deck Medic will reimburse the franchisee for reasonable out-of-pocket administrative expenses incurred while following Deck Medic's written instructions.
Deck Medic will protect the franchisee's right to use the Licensed Marks, provided the franchisee uses the marks according to the Franchise Agreement and Deck Medic's instructions. Deck Medic will also indemnify the franchisee against direct damages for trademark infringement arising from the franchisee's compliant use of the Licensed Marks. However, this protection is contingent on the franchisee notifying Deck Medic of the claim promptly and allowing Deck Medic to control the defense and settlement. Deck Medic is not obligated to cover the fees of any attorney retained by the franchisee if Deck Medic defends the claim.
If a third party successfully claims superior rights to the marks, Deck Medic may modify or replace the Licensed Marks, and the franchisee must adopt the changes. In this case, Deck Medic's sole obligation is to reimburse the franchisee for direct out-of-pocket costs associated with complying with the changes, such as alterations in signage and replacement of marketing materials, provided these costs are documented to Deck Medic's satisfaction.