Who has the sole discretion to control litigation involving a trademark licensed by Kidokinetics?
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.
Source: Item 13 — TRADEMARKS (FDD pages 36–38)
What This Means (2024 FDD)
According to Kidokinetics's 2024 Franchise Disclosure Document, Kidokinetics retains sole discretion over litigation involving its trademarks. Specifically, Kidokinetics has the authority to take actions it deems appropriate to control any litigation or administrative proceedings related to trademarks licensed to franchisees.
This means that while Kidokinetics will defend a franchisee against third-party claims of trademark infringement resulting from the franchisee’s authorized use of Kidokinetics's marks, Kidokinetics maintains exclusive control over any related legal proceedings. The franchisee may be required to assist Kidokinetics in such matters, but the franchisor ultimately decides how to handle the litigation.
Kidokinetics also has no obligation to pursue infringing users of their marks. However, the franchisee must notify Kidokinetics within three business days if they become aware of any party using the marks or a confusingly similar trademark. This obligation ensures Kidokinetics is promptly informed of potential infringement, allowing them to assess the situation and decide on the appropriate course of action. This is a fairly typical arrangement in franchising, as the franchisor has the greatest stake in protecting the brand's intellectual property.