Does Flowerama have the right to use the "1-800-Flowers" trademarks, trade names and service marks?
Flowerama Franchise · 2024 FDDAnswer from 2024 FDD Document
B. 1-800-Flowers.com, Inc., a Delaware corporation ("Flowers"), Franchisor's parent company, is the owner of all right, title and interest in and to the trade name, trademark and service mark "1-800- Flowers" (together with the Flowerama Marks, collectively, the "Marks") and other marks, and Flowers has authorized Franchisor to offer Flowerama franchisees the right to co-brand with and use the 1-800-Flowers marks, products and system.
D. 1-800-Flowers.com, Inc., our Parent company ("FLOWERS"), is the owner of all right, title and interest in and to the trade name, trademark and service mark "1-800-FLOWERS" and other marks ("FLOWERS' Marks"), and has authorized us to offer Flowerama franchisees the right to co-brand with and use FLOWERS' Marks, products and system.
Franchisor hereby grants to Franchisee during the remaining term of the Franchise Agreement, a limited, non-exclusive and personal license to use the branding "1-800- FLOWERS|FLOWERAMA" exclusively in connection with the operation of the Franchised Unit at the Franchised Location and in the form and manner designated by Franchisor. All references to "Trademarks" in the Franchise Agreement and the "FLOWERS' Marks" in this Addendum shall hereafter mean and refer to "1-800-FLOWERS|FLOWERAMA" together with any other trademarks or service marks Franchisor designates for use at the Franchised Unit (collectively, the "Marks"). Franchisee shall no longer have the right to use, nor shall Franchisee use, the trademark "FLOWERAMA" in connection with the operation of the Franchised Unit at the Franchised Location, except as above provided.
In the event of any claim of infringement of or challenge to Franchisee's use of the Marks, Franchisee shall immediately notify Franchisor in writing of the facts of such claim or challenge. Franchisor shall protect and defend Franchisee's use of our Marks as licensed hereunder.
Franchisor shall cause the 1-800-Flowers Marketing Fund to reimburse Franchisee for all damages for which it is held liable in any proceeding described in Section 2B; however, the foregoing obligation of Franchisor to protect, defend and cause the 1-800-Flowers Marketing Fund to reimburse Franchisee will exist only if Franchisee has used the Marks which are the subject of the controversy in strict accordance with the provisions of the Franchise Agreement, this Addendum and Franchisor's rules, regulations, procedures, requirements and instructions and Franchisee has notified Franchisor of the challenge as required by Section 2B.
Any action to be taken in the event of a claim or challenge to any of the Marks shall be solely in Franchisor's discretion.
In the event it becomes advisable or desirable at any time, in Franchisor's sole and absolute discretion, for Franchisee, alone or in conjunction with other franchisees of Franchisor, to modify or discontinue the use, in whole or in part, of any one or more of the Marks, or to use one or more additional or substitute marks, Franchisee agrees to immediately comply with Franchisor's instructions in that regard.
Franchisee shall be responsible for all costs which may be incurred to comply with this obligation.
Source: Item 20 — OUTLETS AND FRANCHISEE INFORMATION (FDD pages 72–77)
What This Means (2024 FDD)
According to Flowerama's 2024 Franchise Disclosure Document, Flowerama of America, Inc. has been authorized by its parent company, 1-800-Flowers.com, Inc., to offer Flowerama franchisees the right to co-brand with and use the 1-800-Flowers marks, products, and system. This authorization allows Flowerama to grant its franchisees a license to use the "1-800-FLOWERS|FLOWERAMA" branding in connection with their franchised unit's operation at the designated location. This co-branding opportunity is presented to franchisees through a Co-Brand Addendum to the Franchise Agreement.
Flowerama grants franchisees a limited, non-exclusive, and personal license to use the co-branded mark during the term of the Franchise Agreement. The franchisee's use of the marks must be in the form and manner designated by Flowerama. The agreement stipulates that all references to "Trademarks" in the Franchise Agreement and the "FLOWERS' Marks" in the Addendum refer to "1-800-FLOWERS|FLOWERAMA" along with any other trademarks or service marks Flowerama designates for use at the franchised unit. Once the co-branding addendum is in effect, the franchisee no longer has the right to use the "FLOWERAMA" trademark independently, except as part of the co-branded mark.
In the event of any claim of infringement or challenge to the franchisee's use of the Marks, the franchisee must immediately notify Flowerama in writing. Flowerama is obligated to protect and defend the franchisee's use of the Marks as licensed under the agreement. Furthermore, Flowerama will ensure that the 1-800-Flowers Marketing Fund reimburses the franchisee for any damages they are held liable for in such proceedings, provided the franchisee has used the Marks in strict accordance with the Franchise Agreement, the Addendum, and Flowerama's rules and regulations, and has properly notified Flowerama of the challenge.
Flowerama retains sole discretion over any action taken in response to a claim or challenge to any of the Marks, including the right to control any resulting legal actions or proceedings. Franchisees are required to fully cooperate with Flowerama in the prosecution or defense of any claim concerning the Marks. Additionally, Flowerama has the right to instruct franchisees to modify or discontinue the use of any Marks, or to use substitute marks, at any time, and the franchisee must comply with these instructions at their own cost.