What are the 'Proprietary Marks' that a Hyper Kidz franchisee is allowed to use?
Hyper_Kidz Franchise · 2024 FDDAnswer from 2024 FDD Document
al is proprietary and confidential to us, and you agree that you will not at any time copy or distribute any part of the Operations Manual. Upon termination of this Agreement or expiration of this Agreement without grant of a successor franchise, you shall return to us all copies of the Operations Manual.
ARTICLE 6: MARKS
6.1 Goodwill and Ownership of Marks
We are the owner or the licensee of the owner of the Marks as shown in Attachment 2. All references in this Agreement to our right, title and interest in and to the Marks shall be deemed to include the owner's right, title and interest in and to the Marks. You acknowledge that your right to use the Marks is derived solely from this Agreement and is limited to the operation of the Hyper Kidz Business by you pursuant to and in compliance with this Agreement and all applicable standards, specifications, and operating procedures prescribed by us from time to time during the term of the Franchise. Any unauthorized use of the Marks by you shall constitute a material breach of this Agreement and an infringement of our rights in and to the Marks. You acknowledge and agree that all usage of the Marks by you and any goodwill established thereby shall inure to our exclusive benefit and that this Agreement does not confer any goodwill or other interests in the Marks upon you other than the right to operate the Hyper Kidz Business in compliance with this Agreement. All provisions of this Agreement applicable to the Marks shall apply to any other trademarks, service marks and commercial symbols hereafter authorized in writing for use by and licensed to you by us.
You understand and agree that the limited license to use the Marks granted hereby applies only to such proprietary marks as are designated by us, and which are not subsequently designated by us as being withdrawn from use, together with those which may hereafter being designated by us in writing. You expressly understand and agree that you are bound not to represent in any manner that you have acquired any ownership or equitable rights in any of our Marks by virtue of the limited license granted hereunder, or by virtue of your use of any of the Marks.
During the term of this Agreement and any renewal or extension hereof, you shall identify yourself as the independent owner of the Hyper Kidz Business in conjunction with any use of the Marks, including, but not limited to, on invoices, order forms, receipts, business stationery, contracts with all third parties or entities, as well as the display of such notices in such content and form and at such conspicuous locations as we may designate in writing.
6.2 Limitations on Your Use of Marks
You agree to use the Marks as the sole trade identification of the Hyper Kidz Business, provided that you shall identify yourself as the independent owner of the Hyper Kidz Business in the manner prescribed by us. You shall not use any Mark or any variation thereof (a) as part of any corporate or trade
name or with any prefix, suffix, or other modifying words, terms, designs, or symbols, or in any modified form; (b) in connection with the performance or sale of any unauthorized services or products; (c) as part of the Domain Name or electronic address of any Website; or (d) in any other manner not expressly authorized in writing by us. You agree to display the Marks prominently in the manner prescribed by us at the Hyper Kidz Business and in connection with advertising and marketing materials. You agree to give such notices of trademark and service mark registrations as we specify and to obtain such business trade name registrations as may be required under applicable law.
6.3 Notification of Infringements and Claims
You shall immediately notify us of any apparent infringement of or challenge to your use of any Mark or claim by any person of any rights in any Mark, and you shall not communicate with any person other than us and our counsel in connection with any such infringement, challenge or claim. We shall have sole discretion to take such action as we deem appropriate in connection with the foregoing and the right to control exclusively any settlement, litigation or Patent and Trademark Office or other proceeding arising out of any such alleged infringement, challenge or claim or otherwise relating to any Mark. You agree to execute any and all instruments and documents, render such assistance, and do such acts and things as, in the opinion of our counsel, are necessary or advisable to protect and maintain our interests in any litigation or other proceeding or to otherwise protect and maintain our interests in the Marks. We will reimburse you for the reasonable out-of-pocket expenses incurred and paid by you in complying with the requirements imposed by this Section, provided however, if any action taken by us results in any monetary recovery for you which exceeds your costs, then you must pay your own costs and share pro-rata in our costs thereof, up to the amount of the monetary recovery.
Source: Item 22 — CONTRACTS (FDD page 52)
What This Means (2024 FDD)
According to Hyper Kidz's 2024 Franchise Disclosure Document, a franchisee's right to use the brand's marks comes solely from the franchise agreement. This use is specifically limited to operating a Hyper Kidz Business in compliance with the agreement's standards and procedures. Any unauthorized use of the marks is a breach of the agreement and an infringement on Hyper Kidz's rights. All goodwill generated from a franchisee's use of the marks benefits Hyper Kidz, and the agreement does not grant the franchisee any ownership or interest in the marks beyond the right to operate the business.
The agreement specifies that the license to use the marks applies only to those proprietary marks designated by Hyper Kidz. These marks can be withdrawn or added at Hyper Kidz's discretion through written notice. Franchisees are prohibited from representing that they have acquired any ownership rights in the marks through their license or use. Franchisees must identify themselves as independent owners of the Hyper Kidz Business in conjunction with any use of the marks, including on business documents and signage, as directed by Hyper Kidz.
Hyper Kidz retains the right to modify or discontinue the use of any mark or trade dress. If this occurs, franchisees must immediately comply with Hyper Kidz's directions to change or discontinue using the mark and adopt any substitutes. Hyper Kidz is not obligated to reimburse franchisees for any expenses related to modifying or discontinuing the use of a mark, including advertising or promotional materials, or to compensate for any goodwill related to the discontinued mark. Franchisees agree not to litigate against Hyper Kidz for these expenses or damages.
Franchisees must use the marks as the sole trade identification of their Hyper Kidz Business and identify themselves as independent owners as prescribed by Hyper Kidz. They cannot use any mark or variation of it as part of a corporate or trade name, with unauthorized services or products, as part of a domain name or electronic address, or in any manner not expressly authorized by Hyper Kidz in writing. The marks must be displayed prominently at the Hyper Kidz Business and in advertising materials, with appropriate trademark and service mark registration notices. Franchisees are also prohibited from using the marks on social media without prior written consent from Hyper Kidz.