Common use of Trademark Infringement Clause in Contracts

Trademark Infringement. Alfacell and Par shall promptly notify the other in writing of any alleged or threatened infringement or any challenge to the validity of the Trademark or any challenge to Alfacell’s ownership of or Par’ s right to use the Trademark in the Territory of which they become aware. Both Parties shall use their reasonable efforts in cooperating with each other to terminate such infringement without litigation. Alfacell shall have the sole right to bring and control any action or proceeding with respect to infringement of any of the Trademark at its own expense and by counsel of its own choice, subject to the following provisions. With respect to infringement of any of the Trademark in the Territory, if Alfacell fails to bring an action or proceeding within (i) thirty (30) days following the notice of alleged infringement or (ii) ten (10) days before the time limit, if any, set forth in the appropriate laws and regulations for the filing of such actions, whichever comes first, Par shall have the right to bring and control any such action at its own expense and by counsel of its own choice, and Alfacell shall have the right, at its own expense, to be represented in any such action by counsel of its own choice. In the event a Party brings an infringement action, the other Party shall cooperate fully, including if required to bring such action, the furnishing of a power of attorney or being named as a party. Neither Party shall have the right to settle any infringement litigation under this Section 9.5 relating to the Trademark in a manner that diminishes the rights or interests of the other Party without the prior written consent of the other Party, which shall not be unreasonably withheld, delayed or conditioned. Except as otherwise agreed to by the Parties as part of a cost-sharing arrangement, any recovery realized as a result of such litigation, after reimbursement of any litigation expenses of Alfacell and Par, ***.

Trademark Infringement. Alfacell and Par Each Party shall promptly notify the other in writing of any alleged or threatened infringement or any challenge to the validity possible infringement of the Trademark or any challenge to Alfacell’s ownership of or Par’ s right to use the Trademark Rights in the Territory by a Third Party promptly after it becomes aware of which they become awaresuch infringement. Both Parties shall use their reasonable efforts in cooperating with each other to terminate such infringement without litigation. Alfacell shall Anthera (or its Affiliate or sublicensee, as applicable) will have the sole right first right, but not the obligation, to bring institute, prosecute, and control any action or proceeding with respect to infringement of any in the Territory of the Trademark Rights (a “Trademark Enforcement Action”), by counsel of its own choice. Lilly shall have the right, at its own expense and expense, to be represented in any such action by counsel of its own choice, subject provided that Anthera will in any event control the action. Notwithstanding the foregoing, prior to the following provisions. With respect to infringement of any of the Trademark in the Territory, if Alfacell fails to bring initiating an action or proceeding against a Third Party with respect to the Trademark Rights, Anthera shall notify Lilly of its intent to bring such action or proceeding and shall consult with Lilly regarding Anthera’s planned course of action. Lilly shall have the option to assign to Anthera its ownership interest in any Trademark Rights at issue prior to the initiation by Anthera of an infringement action or proceeding with respect to such Trademark Rights. Lilly shall provide reasonable assistance and cooperation to Anthera at Anthera’s expense and may, at their sole discretion and expense and by counsel of their choice, join in such Trademark Enforcement Action. If Anthera does not institute an Enforcement Action within (ia) thirty (30) days [***] following the written notice of alleged infringement and request by Lilly to initiate such action, or (iib) ten (10) days [***] before the time limit, if any, set forth in the appropriate laws and regulations for the filing of such actions, whichever comes first, Par Lilly shall have the right right, but not the obligation, to bring and control any such action or proceeding at its own expense and by counsel of its own choice. In such event, Anthera shall provide reasonable assistance and Alfacell cooperation to Lilly in connection with such Trademark Enforcement Action at Lilly’s expense. If Lilly institutes a Trademark Enforcement Action, Anthera shall have the right, at its own expense, to be represented in any such action by counsel of its own choice. In the event a Party brings an infringement actionAny damages, the settlement amounts, or other Party shall cooperate fully, including if required to bring consideration resulting from any such action, the furnishing of a power of attorney or being named as a party. Neither Party shall have the right to settle any infringement litigation under this Section 9.5 relating to the Trademark in a manner that diminishes the rights or interests of the other Party without the prior written consent of the other Party, which shall not be unreasonably withheld, delayed or conditioned. Except as otherwise agreed to by the Parties as part of a cost-sharing arrangement, any recovery realized as a result of such litigation, after reimbursement of any litigation each Party’s attorney’s fees and court costs in connection with such action, shall belong to the Party that initiated the action; provided, however, that if Anthera is the initiating Party, the remainder (after reimbursement of fees, costs and other expenses related thereto of Alfacell and Par, ***the Parties) will be deemed to be Net Sales subject to applicable royalty obligations.

Trademark Infringement. Alfacell (i) With respect to any and Par all Claims instituted by Third Parties against Nycomed or NPS or any of their respective Affiliates for trademark infringement involving the use, sale, license or marketing of the Products (each, a “Product Trademark Infringement Claim”), Nycomed shall be solely responsible for any and all Losses arising out of or resulting from such Product Trademark Infringement Claims in the Territory and NPS shall be solely responsible for any and all Losses arising out of or resulting from such Product Trademark Infringement Claims in North America. The Parties shall cooperate with each other in the defense and settlement of any Product Trademark Infringement Claims. (ii) In the event that a Party becomes aware of actual or threatened infringement of the Product Trademark, that Party shall promptly notify the other Party in writing (a “Trademark Infringement Notice”). Nycomed shall have the right but not the obligation to bring an action with respect to such infringement against any Third Party for infringement of any alleged or threatened infringement or any challenge to the validity of the Trademark or any challenge to Alfacell’s ownership of or Par’ s right to use the a Product Trademark in the Territory of which they become aware. Both Parties shall use their reasonable efforts in cooperating with each other to terminate such infringement without litigation. Alfacell and NPS shall have the sole right to bring and control any action or proceeding with respect to infringement of any of but not the Trademark at its own expense and by counsel of its own choice, subject to the following provisions. With respect to infringement of any of the Trademark in the Territory, if Alfacell fails obligation to bring an action with respect to such infringement against any Third Party for infringement of a Product Trademark in North America. A Party shall exercise this first right by providing the other Party written notice of its intention to initiate and prosecute the action or proceeding within sixty (i) thirty (3060) days following after giving or receiving a Trademark Infringement Notice. During the notice of alleged infringement or (ii) ten (10) days before the time limitTerm, if any, set forth in the appropriate laws and regulations for event that either Party does not undertake such an infringement action with respect to a Product Trademark, the filing of other Party shall be permitted to do so. If either Party is not recognized by the applicable court or other relevant body as having the requisite standing to pursue such actionsaction, whichever comes first, Par shall have then the right to bring and control any other Party may join such action at its own expense and by counsel of its own choice, and Alfacell shall have the right, at its own expense, to be represented in any such action by counsel of its own choiceParty as party-plaintiff. In the event If a Party brings an elects to pursue such infringement action, the other Party shall cooperate fully, including if required may (i) elect to bring participate in such action, the furnishing of a power of attorney or being named as a party. Neither in which case such Party shall bear one-half of the out-of-pocket costs and expenses of the action (including, without limitation, court costs, reasonable fees of attorneys, accountants and other experts and other expenses of litigation or proceedings) and shall share any recovery in proportion to their actual damages, or (ii) elect not to participate in such action, in which case such Party shall have no obligation to pay for any of the costs or expenses of the action and shall not receive any portion of any recoveries and the other Party shall bear all costs and expenses of the action and retain all recoveries. For the purposes of this Section 8.8(e)(ii), the Party that brings suit to enforce a given trademark shall also have the right to settle any infringement litigation under this Section 9.5 relating to the Trademark in a manner that diminishes the rights or interests of the other Party without the prior written consent of the other Party, which shall not be unreasonably withheld, delayed or conditioned. Except as otherwise agreed to by the Parties as part of a cost-sharing arrangement, any recovery realized as a result control settlement of such litigation, after reimbursement of any litigation expenses of Alfacell and Par, ***Claim.

Trademark Infringement. Alfacell and Par (a) In the event that OPKO or Licensee becomes aware of actual or threatened infringement of a OPKO Trademark anywhere in the Licensee Territory, that Party shall promptly notify the other Party in writing of any alleged or threatened infringement or any challenge to the validity of the Trademark or any challenge to Alfacell’s ownership of or Par’ s right to use the Trademark in the Territory of which they become awarewriting. Both Parties shall use their reasonable efforts in cooperating with each other to terminate such infringement without litigation. Alfacell OPKO shall have the sole right first right, but not the obligation, to investigate and/or bring an infringement and/or opposition or cancellation action against any Third Party. OPKO shall have full control over the conduct of such investigations and control litigation, including the settlement thereof. The cost of such investigation and litigation shall be [***]. The Parties shall [***]. Licensee shall reasonably assist OPKO and cooperate in any such investigation and litigation at OPKO’s request, including being joined as a party in such action or proceeding upon OPKO’s written request. (b) OPKO shall provide information about its preliminary intention with respect to infringement of any of the actual or threatened OPKO Trademark at its own expense and by counsel of its own choice, subject to the following provisions. With respect to infringement of any of the Trademark in the Territory, if Alfacell fails to bring an action or proceeding within (i) thirty (30) [***] days following the notice of alleged infringement or (ii) ten (10) days before the time limit, if any, set forth in the appropriate laws and regulations for the filing after it first learns of such actions, whichever comes first, Par actual or alleged infringement. Licensee shall have the right to bring and control any enforce such OPKO Trademark if OPKO does not initiate an enforcement action at its own expense and within [***] days after it first learns of such infringement. The cost of such litigation brought by counsel Licensee shall be borne by [***]. (c) In the event that OPKO or Licensee becomes aware of its own choiceactual or threatened infringement of a Licensee Trademark anywhere in the Licensee Territory, and Alfacell that Party shall promptly nofity the other Party in writing. Licensee shall have the sole right, at its own expensebut not the obligation, to be represented in any such action by counsel of its own choice. In the event a Party brings investigate and/or bring an infringement action, and/or opposition or cancellation action against any Third Party. Licensee shall have full control over the other Party shall cooperate fullyconduct of such investigations and litigtion, including if required to bring such action, the furnishing of a power of attorney or being named as a party. Neither Party shall have the right to settle any infringement litigation under this Section 9.5 relating to the Trademark in a manner that diminishes the rights or interests of the other Party without the prior written consent of the other Party, which shall not be unreasonably withheld, delayed or conditioned. Except as otherwise agreed to by the Parties as part of a cost-sharing arrangement, any recovery realized as a result of such litigation, after reimbursement of any litigation expenses of Alfacell and Par, settlement thereof [***].[***] generated from such litigation.

Trademark Infringement. Alfacell and Par (a) In the event that OPKO or Licensee becomes aware of actual or threatened infringement of a OPKO Trademark anywhere in the License Territory, that Party shall promptly notify the other Party in writing of any alleged or threatened infringement or any challenge to the validity of the Trademark or any challenge to Alfacell’s ownership of or Par’ s right to use the Trademark in the Territory of which they become awarewriting. Both Parties shall use their reasonable efforts in cooperating with each other to terminate such infringement without litigation. Alfacell OPKO shall have the sole right first right, but not the obligation, to investigate and/or bring an infringement and/or opposition or cancellation action against any Third Party. OPKO shall have full control over the conduct of such investigations and control litigation. The cost of such investigation and litigation [***]. Any [***]; provided, however, that such received [***] in accordance with Article 5. Licensee shall reasonably assist OPKO and cooperate in any such investigation and litigation at OPKO’s request, including being joined as a party in such action or proceeding upon OPKO’s written request. (b) OPKO shall provide information about its preliminary intention with respect to infringement of any of the actual or threatened OPKO Trademark at its own expense and by counsel of its own choice, subject to the following provisions. With respect to infringement of any of the Trademark in the Territory, if Alfacell fails to bring an action or proceeding within (i) thirty (30) [***] days following the notice of alleged infringement or (ii) ten (10) days before the time limit, if any, set forth in the appropriate laws and regulations for the filing after it first learns of such actions, whichever comes first, Par actual or alleged infringement. Licensee shall have the right to bring and control any enforce such OPKO Trademark if OPKO does not initiate an enforcement action at its own expense and within [***] days after it first learns of such infringement. The cost of such litigation brought by counsel Licensee shall be borne [***]. Any [***]; provided, however, that such received [***] in accordance with Article 5. (c) In the event that OPKO or Licensee becomes aware of its own choiceactual or threatened infringement of a Licensee Trademark anywhere in the License Territory, and Alfacell that Party shall promptly nofity the other Party in writing. Licensee shall have the sole right, at its own expensebut not the obligation, to be represented in any such action by counsel of its own choice. In the event a Party brings investigate and/or bring an infringement action, and/or opposition or cancellation action against any Third Party. Licensee shall have full control over the other Party shall cooperate fullyconduct of such investigations and litigtion, including if required to bring such action, the furnishing of a power of attorney or being named as a party. Neither Party shall have the right to settle any infringement litigation under this Section 9.5 relating to the Trademark in a manner that diminishes the rights or interests of the other Party without the prior written consent of the other Party, which shall not be unreasonably withheld, delayed or conditioned. Except as otherwise agreed to by the Parties as part of a cost-sharing arrangement, any recovery realized as a result of such litigation, after reimbursement of any litigation expenses of Alfacell and Par, settlement thereof [***]. [***] generated from such litigation.