What are the requirements for a Deck Medic franchisee to receive indemnification for trademark infringement?
Deck_Medic Franchise · 2024 FDDAnswer from 2024 FDD Document
e 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.
Source: Item 13 — TRADEMARKS (FDD pages 32–33)
What This Means (2024 FDD)
According to Deck Medic's 2024 Franchise Disclosure Document, Deck Medic will protect a franchisee's right to use the Licensed Marks and defend against infringement claims if the franchisee meets certain conditions. Specifically, the franchisee must use the Licensed Marks according to the Franchise Agreement, as outlined in the Manuals, and as otherwise instructed by Deck Medic.
To be indemnified against direct damages for trademark infringement, the Deck Medic franchisee's use of the Licensed Marks must comply with the terms of the Franchise Agreement, the Manuals, and any written instructions from Deck Medic. Additionally, the franchisee must promptly notify Deck Medic of any claim, allow Deck Medic sole control over the defense and settlement of the claim, and remain in compliance with the Franchise Agreement.
If Deck Medic defends the claim, it is not obligated to cover the fees or disbursements of any attorney retained by the franchisee. This means that while Deck Medic will handle the legal defense, the franchisee may be responsible for their own legal costs if they choose to hire separate counsel. This is a fairly standard clause in franchise agreements, as franchisors typically want to maintain control over trademark-related litigation to ensure consistent brand protection.
In the event a third party successfully demonstrates superior rights to the marks, Deck Medic will modify or replace the Licensed Marks. In this case, Deck Medic's sole obligation is to reimburse the franchisee for direct out-of-pocket costs incurred in complying with the required changes, such as alterations to signage and replacement of marketing materials, provided the franchisee documents these costs to Deck Medic's satisfaction.