If Punch King Fitness undertakes the defense of the Punch King Fitness Marks, what is the franchisee required to do?
Punch_King_Fitness Franchise · 2024 FDDAnswer from 2024 FDD Document
Your use of the Punch King Fitness Marks is limited to use in connection with the operation of your Punch King Fitness Franchised Business as described in the Franchise Agreement and as outlined in the Punch King Fitness Operating Manual. You must promptly notify us of any use of the Punch King Fitness Marks or any colorable variation by any person or legal entity or any litigation instituted by any person or legal entity against you or us involving the Punch King Fitness Marks. We will control any litigation or proceeding. We are not required to defend the Punch King Fitness Marks. If we undertake the defense, prosecution, or
settlement of any litigation relating to the Punch King Fitness Marks, you agree to assist as necessary to carry out such defense, prosecution, or settlement. We retain the right to modify or discontinue the Mark(s). We are not required to indemnify you for expenses or damages if you are a party to an administrative or judicial proceeding involving a trademark licensed by us or if the proceeding is resolved unfavorably. You shall, upon demand by us, modify or discontinue the use of Punch King Fitness Mark(s), at your sole cost and expense, any Mark(s), as directed by us. We are not required to reimburse or compensate you for any modification or discontinuation of the Marks.
Source: Item 13 — TRADEMARKS (FDD pages 38–39)
What This Means (2024 FDD)
According to Punch King Fitness's 2024 Franchise Disclosure Document, if Punch King Fitness decides to defend, prosecute, or settle any litigation related to its trademarks, franchisees must assist as necessary in carrying out the defense, prosecution, or settlement. This means that while Punch King Fitness retains control over legal proceedings concerning the Punch King Fitness Marks, franchisees have an obligation to provide support if requested.
This requirement could involve providing documentation, appearing as a witness, or offering other forms of assistance that Punch King Fitness deems necessary for the legal process. It is important to note that while franchisees are obligated to assist, Punch King Fitness is not required to defend the Punch King Fitness Marks in the first place, nor are they required to indemnify the franchisee for expenses or damages if the franchisee is involved in a trademark-related proceeding that resolves unfavorably.
Furthermore, Punch King Fitness retains the right to modify or discontinue the use of any Punch King Fitness Mark. If directed by Punch King Fitness, franchisees must modify or discontinue the use of such marks at their own cost and expense, and Punch King Fitness is not required to compensate franchisees for any resulting modifications or discontinuation. This highlights the franchisor's control over the trademarks and the franchisee's responsibility to adhere to the franchisor's decisions regarding their use.