Is Fly To Fit required to indemnify a franchisee for expenses or damages in a copyright proceeding?
Fly_To_Fit Franchise · 2024 FDDAnswer from 2024 FDD Document
12.3 Infringement.
- (a) Defense of Franchisee. If Franchisee has used the Marks in accordance with this Agreement, then (i) Fly To Fit Franchise shall defend Franchisee (at Fly To Fit Franchise's expense) against any Action by a third-party alleging infringement by Franchisee's use of a Mark, and (ii) Fly To Fit Franchise will indemnify Franchisee for expenses and damages if the Action is resolved unfavorably to Franchisee.
- (b) Infringement by Third Party. Franchisee shall promptly notify Fly To Fit Franchise if Franchisee becomes aware of any possible infringement of a Mark by a third party. Fly To Fit Franchise may, in its sole discretion, commence or join any claim against the infringing party.
- (c) Control. Fly To Fit Franchise shall have the exclusive right to control any prosecution or defense of any Action related to possible infringement of or by the Marks.
Source: Item 14 — PATENTS, COPYRIGHTS AND PROPRIETARY INFORMATION (FDD pages 33–34)
What This Means (2024 FDD)
According to Fly To Fit's 2024 Franchise Disclosure Document, Fly To Fit will defend a franchisee against actions alleging infringement from the franchisee's use of a mark, and will indemnify the franchisee for expenses and damages if the action is resolved unfavorably to the franchisee. However, this is only if the franchisee has used the marks in accordance with the franchise agreement. This means a franchisee must adhere to Fly To Fit's guidelines and standards for using their trademarks to be eligible for this protection.
This obligation extends to any Action by a third party alleging infringement by the franchisee's use of a Mark. This means that if another company or individual claims that the Fly To Fit franchisee is violating their trademark or copyright by using Fly To Fit's marks, Fly To Fit is obligated to step in and handle the legal defense. If the legal action results in a loss for the franchisee, Fly To Fit will cover the expenses and damages awarded.
Fly To Fit maintains exclusive control over the defense or prosecution of any action related to possible infringement of the marks. The franchisee is required to promptly notify Fly To Fit if they become aware of any potential infringement of a mark by a third party. This ensures that Fly To Fit can take appropriate action to protect its brand and marks. However, if the franchisee does not use the marks in accordance with the agreement, they may not be defended or indemnified by Fly To Fit.