What does the term 'Marks' encompass for a Hyper Kidz franchise, and can these 'Marks' be modified?
Hyper_Kidz Franchise · 2024 FDDAnswer from 2024 FDD Document
- 2.1.5 “Marks” The trademarks, service marks, logos, other commercial symbols and any Domain Name which we authorize you to use to identify the services and/or products offered by your Hyper Kidz Business including the mark “Hyper Kidz” and the “Trade Dress”; provided that such trademarks, service marks, logos, other commercial symbols, and the Trade Dress are subject to modification and discontinuance and may include additional or substitute trademarks, service marks, logos, commercial symbols and trade dress as provided in this Agreement.
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, the term 'Marks' includes trademarks, service marks, logos, other commercial symbols, and any Domain Name authorized for use to identify the services and/or products offered by a Hyper Kidz Business. This specifically includes the mark "Hyper Kidz" and the "Trade Dress." The franchisor retains the right to modify or discontinue these marks.
Hyper Kidz franchisees must use the Marks as the sole trade identification of their business, while also identifying themselves as the independent owner in a manner prescribed by the franchisor. Franchisees are prohibited from using any Mark or variation thereof in unauthorized ways, such as part of a corporate or trade name, in connection with unauthorized services or products, or as part of a domain name or electronic address of any Website, unless expressly authorized in writing by the franchisor.
Hyper Kidz franchisees are required to notify the franchisor immediately of any apparent infringement or challenge to the use of any Mark. The franchisor has sole discretion to take action regarding infringements, challenges, or claims related to any Mark, including controlling any settlement, litigation, or other proceedings. Franchisees must assist in protecting the franchisor's interests in any litigation or proceeding related to the Marks. The franchisor will reimburse reasonable out-of-pocket expenses incurred by the franchisee in complying with these requirements, unless any action results in monetary recovery for the franchisee exceeding their costs, in which case costs are shared pro-rata.