What assistance is a Fly Fitness franchisee required to provide to protect Fly Fitness's interest in any litigation or other proceeding related to intellectual property?
Fly_Fitness Franchise · 2024 FDDAnswer from 2024 FDD Document
the Marks, must be approved by Franchisor in writing prior to being distributed or sold by Franchisee and such approval may be granted or denied in Franchisor's sole and absolute discretion.
- 14.8. Claims. Franchisee shall notify Franchisor immediately via both email and telephone, of any apparent infringement of or challenge to Franchisee's use of any Intellectual Property and of any claim by any person of any rights in any Intellectual Property. Franchisee shall not communicate with any person other than Franchisor or any designated affiliate thereof, their counsel and Franchisee's counsel in connection with any such infringement, challenge, or claim. Franchisor shall have complete discretion to take such action as it deems appropriate in connection with the foregoing, and the right to control exclusively, or to delegate control to any of its affiliates of, any settlement, litigation or other proceeding arising out of any such alleged infringement, challenge or claim or otherwise relating to any Intellectual Property. Franchisee agrees to execute any and all instruments and documents, render such assistance, and do such acts or things as may, in the opinion of Franchisor, reasonably be necessary or advisable to protect and maintain the interests of Franchisor or any other person or entity in any litigation or other proceeding or to otherwise protect and maintain the interests of Franchisor or any other interested party in the Intellectual Property. Franchisor will indemnify and defend Franchisee against and reimburse Franchisee for actual damages (including settlement amounts) for which Franchisee is held liable in any proceeding arising out of Franchisee's use of any of the Intellectual Property that infringes on the rights of any other party, provided that the conduct of Franchisee with respect to such proceeding and use of the Intellectual Property is in full compliance with the terms of this Agreement.
Source: Item 22 — CONTRACTS (FDD pages 44–45)
What This Means (2024 FDD)
According to Fly Fitness's 2024 Franchise Disclosure Document, a franchisee must provide assistance to protect Fly Fitness's interests in intellectual property-related legal matters. Specifically, the franchisee must execute documents, provide assistance, and perform actions that Fly Fitness deems reasonably necessary to protect its interests or those of other interested parties in any litigation or proceeding related to intellectual property. This obligation ensures that Fly Fitness can effectively defend and maintain its intellectual property rights.
Furthermore, the franchisee is obligated to immediately inform Fly Fitness via email and telephone of any potential infringement or challenges to the franchisee's use of Fly Fitness's intellectual property. The franchisee must also report any claims by others regarding rights to the intellectual property. The franchisee is restricted from communicating with anyone other than Fly Fitness, its affiliates, their counsel, and the franchisee's own counsel regarding such infringements, challenges, or claims. This communication protocol ensures that Fly Fitness maintains control over the response to any intellectual property issues.
In addition, the Fly Fitness franchisee cannot contest the validity of Fly Fitness's or its licensor's interest in the intellectual property, nor can they assist others in doing so. The franchisee must also provide Fly Fitness or its licensor with all requested assignments, affidavits, documents, information, and assistance to fully vest all rights, title, and interest in the intellectual property to Fly Fitness or its licensor. This includes providing items reasonably requested to register, maintain, and enforce these intellectual property rights. These measures collectively aim to safeguard Fly Fitness's intellectual property and ensure consistent brand protection across all franchise locations.