Does Kidokinetics have an obligation to pursue infringing users of its Marks?
Kidokinetics Franchise · 2024 FDDAnswer from 2024 FDD Document
We will defend you against any claim brought against you by a third party that your use of the Marks, in accordance with the Franchise Agreement, infringes upon that party's intellectual property rights. We may require your assistance, but we will exclusively control any proceeding or litigation relating to our Marks. We have no obligation to pursue any infringing users of our Marks. If we learn of an infringing user, we will take the action appropriate, but we are not required to take any action if we do not feel it is warranted. You must notify us within three business days if you learn that any party is using the Marks or a trademark that is confusingly similar to the Marks. We have the sole discretion to take such action as we deem appropriate to exclusively control any litigation or administrative proceeding involving a trademark licensed by us to you.
If it becomes advisable at any time, in our sole discretion, for us and/or you to modify or discontinue using any Mark and/or use one or more additional or substitute trademarks or service marks, you must comply with our directions within 30 days after receiving notice. We will not reimburse you for
Source: Item 13 — TRADEMARKS (FDD pages 36–38)
What This Means (2024 FDD)
According to Kidokinetics's 2024 Franchise Disclosure Document, Kidokinetics is not obligated to pursue users infringing on their marks. While Kidokinetics retains the right to take action against infringers if they deem it warranted, they are not required to do so. However, Kidokinetics will defend a franchisee against any third-party claim that the franchisee's use of Kidokinetics's marks infringes upon the third party's intellectual property rights, provided the franchisee is using the marks in accordance with the Franchise Agreement. Kidokinetics maintains exclusive control over any proceedings or litigation related to their marks.
As a Kidokinetics franchisee, you are required to notify Kidokinetics within three business days if you become aware of any party using the marks or a confusingly similar trademark. Kidokinetics then has the sole discretion to take action as they deem appropriate, including controlling any litigation or administrative proceeding involving a trademark licensed to the franchisee.
Furthermore, Kidokinetics may, at its sole discretion, decide to modify or discontinue the use of any mark, or use additional or substitute trademarks or service marks. If this occurs, franchisees must comply with Kidokinetics's directions within 30 days of receiving notice. However, Kidokinetics will not reimburse franchisees for direct expenses of changing signage, any loss of revenue or other indirect expenses due to any modified or discontinued mark, or for expenses of promoting a modified or substituted trademark or service mark. This places the financial burden of trademark changes squarely on the franchisee.