Is Fly To Fit required to participate in the defense of a franchisee 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 is obligated to defend a franchisee in an action alleging infringement of the Marks, provided the franchisee has used the Marks in accordance with the franchise agreement. Fly To Fit will cover the expenses associated with the defense. Additionally, Fly To Fit will cover expenses and damages if the action is resolved unfavorably to the franchisee.
If a franchisee becomes aware of any potential infringement of a Mark by a third party, they must promptly notify Fly To Fit. Fly To Fit retains the exclusive right to control any prosecution or defense related to possible infringement of the Marks.
This section of the FDD clarifies the responsibilities and protections for both the franchisor and franchisee regarding the use and defense of Fly To Fit's trademarks. It ensures that franchisees are supported in legal matters concerning trademark infringement, provided they adhere to the franchise agreement.