Common use of Infringement of Trademarks by Third Parties Clause in Contracts

Infringement of Trademarks by Third Parties. Each Party shall notify the other Party in writing promptly upon learning of any actual, alleged or threatened infringement in the Territory or outside the Territory of any Cubist Xxxx or of any unfair trade practices, trade dress imitation, passing off of counterfeit goods, or like offenses, in any case involving or affecting Licensed Products in the Territory or outside the Territory (hereinafter “TM Infringement”). In the case of any TM Infringement in the Territory, after any such written notice has been sent and received with respect to such TM Infringement, the Parties shall confer in good faith as to the reasonable response to such TM Infringement. In the absence of other * CONFIDENTIAL TREATMENT REQUESTED: MATERIAL HAS BEEN OMITTED AND FILED WITH THE COMMISSION agreement between the Parties, (i) Cubist shall have the exclusive right, in its own discretion and at its own expense, to bring an action to address TM Infringement outside the Territory, (ii) Chiron shall have the first right, in its own discretion and at its own expense, to bring an action to address TM Infringement in the Territory, and (iii) if Chiron does not exercise its rights under the foregoing clause (ii) within ninety (90) days after the Parties shall have conferred in good faith as to the reasonable response to such TM Infringement in the Territory in accordance with the above provisions of this Section 8.10(c), Cubist shall have the right, in its own discretion and its own expense, to bring an action to address such TM Infringement in the Territory. Any recovery by the Party pursuing the Third Party for the alleged TM Infringement shall be applied first to reimburse the costs and expenses incurred by the Party pursuing the infringer, and the portion of any remainder that is attributable to TM Infringement outside the Territory shall be allocated [*] to Cubist, and the portion of such remainder that is attributable to TM Infringement in the Territory shall be allocated as follows: (i) if the pursuing Party is Chiron, [*]; and (ii) if the pursuing Party is Cubist, [*].

Infringement of Trademarks by Third Parties. Affymax shall take all reasonable and appropriate steps to protect, defend and maintain each Product Trademark for use in connection with a Product, and all registrations therefor. Each Party shall notify the other Party in writing promptly upon learning of any actual, alleged or threatened infringement of the Product Trademark. Upon learning of such actual, alleged or threatened infringement, Affymax shall have the obligation to, in consultation with Takeda, institute and control an appropriate action or proceeding to halt the infringement, unless the Parties otherwise mutually agree. All recoveries in connection therewith shall be allocated first to the costs and expenses of Affymax, and second, to the costs and expenses (if any) of Takeda, with any remaining amounts (if any) to be allocated as follows: (i) any recovery with respect to a country in the Royalty Territory shall be shared equally, and (ii) any recovery with respect to the U.S. shall be included in U.S. Product Profits for the applicable Fiscal Year. Takeda shall have the right to participate in all such actions or outside proceedings. For the Territory purposes of the foregoing provisions of this Section 9.8, Affymax shall also have the right to control settlement of such claim; provided, however, that no settlement shall be entered into without the written consent of Takeda, not to be unreasonably withheld, conditioned or delayed if the Commercialization of the Product is not adversely impacted by the settlement. With regard to any Cubist Xxxx other actual, alleged or threatened infringement by a Third Party of trade dress, logo, slogan, or of any unfair trade practices, trade dress imitation, passing off of counterfeit goods, or like offensesoffenses in relation to the Product, in any case involving or affecting Licensed Products in each Party shall notify the Territory or outside other Party promptly upon learning of the Territory (hereinafter “TM Infringement”). In the case of any TM Infringement in the Territorysame, after any such written notice has been sent and received with respect to such TM Infringementand, the Parties JSC shall confer in good faith as to the reasonable response to such TM Infringement. In the absence of other * CONFIDENTIAL TREATMENT REQUESTED: MATERIAL HAS BEEN OMITTED AND FILED WITH THE COMMISSION agreement between the Parties, (i) Cubist shall have the exclusive right, in its own discretion without delay consider and at its own expense, to bring an decide whether and what action to address TM Infringement outside the Territory, (ii) Chiron shall have the first right, in its own discretion and at its own expense, to bring an action to address TM Infringement in the Territory, and (iii) if Chiron does not exercise its rights under the foregoing clause (ii) within ninety (90) days after the Parties shall have conferred in good faith as to the reasonable response to such TM Infringement in the Territory in accordance with the above provisions of this Section 8.10(c), Cubist shall have the right, in its own discretion and its own expense, to bring an action to address such TM Infringement in the Territory. Any recovery by the Party pursuing the Third Party for the alleged TM Infringement shall should be applied first to reimburse the costs and expenses incurred by the Party pursuing the infringer, and the portion of any remainder that is attributable to TM Infringement outside the Territory shall be allocated [*] to Cubist, and the portion of such remainder that is attributable to TM Infringement in the Territory shall be allocated as follows: (i) if the pursuing Party is Chiron, [*]; and (ii) if the pursuing Party is Cubist, [*]taken against thereto.

Infringement of Trademarks by Third Parties. Each Party shall notify the other Party in writing promptly upon learning of any actual, alleged or threatened infringement in the Territory or outside the Territory of any Cubist Xxxx or of any unfair trade practices, trade dress imitation, passing off of counterfeit goods, or like offenses, in any case involving or affecting Licensed Products in the Territory or outside the Territory (hereinafter “"TM Infringement”INFRINGEMENT"). In the case of any TM Infringement in the Territory, after any such written notice has been sent and received with respect to such TM Infringement, the Parties shall confer in good faith as to the reasonable response to such TM Infringement. In the absence of other * CONFIDENTIAL TREATMENT REQUESTED: MATERIAL HAS BEEN OMITTED AND FILED WITH THE COMMISSION 57 agreement between the Parties, (i) Cubist shall have the exclusive right, in its own discretion and at its own expense, to bring an action to address TM Infringement outside the Territory, (ii) Chiron shall have the first right, in its own discretion and at its own expense, to bring an action to address TM Infringement in the Territory, and (iii) if Chiron does not exercise its rights under the foregoing clause (ii) within ninety (90) days after the Parties shall have conferred in good faith as to the reasonable response to such TM Infringement in the Territory in accordance with the above provisions of this Section 8.10(c), Cubist shall have the right, in its own discretion and its own expense, to bring an action to address such TM Infringement in the Territory. Any recovery by the Party pursuing the Third Party for the alleged TM Infringement shall be applied first to reimburse the costs and expenses incurred by the Party pursuing the infringer, and the portion of any remainder that is attributable to TM Infringement outside the Territory shall be allocated [*] to Cubist, and the portion of such remainder that is attributable to TM Infringement in the Territory shall be allocated as follows: (i) if the pursuing Party is Chiron, [*]; and (ii) if the pursuing Party is Cubist, [*].

Infringement of Trademarks by Third Parties. Affymax shall take all reasonable and appropriate steps to protect, defend and maintain each Product Trademark for use in connection with a Product, and all registrations therefor. Each Party shall notify the other Party in writing promptly upon learning of any actual, alleged or threatened infringement of the Product Trademark. Upon learning of such actual, alleged or threatened infringement, Affymax shall have the obligation to, in consultation with Takeda, institute and control an appropriate action or proceeding to halt the infringement, unless the Parties otherwise mutually agree. All recoveries in connection therewith shall be allocated first to the costs and expenses of Affymax, and second, to the costs and expenses (if any) of Takeda, with any remaining amounts (if any) to be allocated as follows: (i) any recovery with respect to a country in the Royalty Territory shall be shared equally, and (ii) any recovery with respect to the U.S. shall be included in U.S. Product Profits for the applicable Fiscal Year. Takeda shall have the right to participate in all such actions or outside proceedings. For the Territory purposes of the foregoing provisions of this Section 9.8, Affymax shall also have the right to control settlement of such claim; provided, however, that no settlement shall be entered into without the written consent of Takeda, not to be unreasonably withheld, conditioned [ * ] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended. or delayed if the Commercialization of the Product is not adversely impacted by the settlement. With regard to any Cubist Xxxx other actual, alleged or threatened infringement by a Third Party of trade dress, logo, slogan, or of any unfair trade practices, trade dress imitation, passing off of counterfeit goods, or like offensesoffenses in relation to the Product, in any case involving or affecting Licensed Products in each Party shall notify the Territory or outside other Party promptly upon learning of the Territory (hereinafter “TM Infringement”). In the case of any TM Infringement in the Territorysame, after any such written notice has been sent and received with respect to such TM Infringementand, the Parties JSC shall confer in good faith as to the reasonable response to such TM Infringement. In the absence of other * CONFIDENTIAL TREATMENT REQUESTED: MATERIAL HAS BEEN OMITTED AND FILED WITH THE COMMISSION agreement between the Parties, (i) Cubist shall have the exclusive right, in its own discretion without delay consider and at its own expense, to bring an decide whether and what action to address TM Infringement outside the Territory, (ii) Chiron shall have the first right, in its own discretion and at its own expense, to bring an action to address TM Infringement in the Territory, and (iii) if Chiron does not exercise its rights under the foregoing clause (ii) within ninety (90) days after the Parties shall have conferred in good faith as to the reasonable response to such TM Infringement in the Territory in accordance with the above provisions of this Section 8.10(c), Cubist shall have the right, in its own discretion and its own expense, to bring an action to address such TM Infringement in the Territory. Any recovery by the Party pursuing the Third Party for the alleged TM Infringement shall should be applied first to reimburse the costs and expenses incurred by the Party pursuing the infringer, and the portion of any remainder that is attributable to TM Infringement outside the Territory shall be allocated [*] to Cubist, and the portion of such remainder that is attributable to TM Infringement in the Territory shall be allocated as follows: (i) if the pursuing Party is Chiron, [*]; and (ii) if the pursuing Party is Cubist, [*]taken against thereto.