Does the Ben Jerrys agreement grant the developer the right to use the Proprietary Marks or the System?
Ben_Jerrys Franchise · 2025 FDDAnswer from 2025 FDD Document
- 1.1 BEN & JERRY'S grants to DEVELOPER the right, and DEVELOPER undertakes the obligation, upon the terms and conditions set forth in this Agreement, to (a) enter into separate signed Franchise Agreements with BEN & JERRY'S (the "Franchise Agreements"), in the manner described in Section 3.5 below, for a specified number of Scoop Shops as set forth in Exhibit A to this Agreement (the "Development Schedule"), at specific locations to be designated in the Franchise Agreements, and (b) to use the Proprietary Marks and System solely in connection therewith.
DEVELOPER and, as approved by BEN & JERRY'S, franchisee entities in which DEVELOPER owns a controlling interest, shall have the right to execute Franchise Agreements with BEN & JERRY'S for Scoop Shops to be developed under this Agreement.
Source: Item 23 — RECEIPTS (FDD pages 134–358)
What This Means (2025 FDD)
According to Ben Jerrys's 2025 Franchise Disclosure Document, the agreement does grant the developer the right to use the Proprietary Marks and the System. Specifically, Ben & Jerry's grants the developer the right and the developer undertakes the obligation to enter into separate signed Franchise Agreements and to use the Proprietary Marks and System solely in connection with those agreements. This right is subject to the terms and conditions outlined in the agreement. The Proprietary Marks include trade names, service marks, trademarks, logos, emblems, and indicia of origin designated by Ben & Jerry's, including the mark "Ben & Jerry's".
This grant of rights is a fundamental aspect of the development agreement, allowing the developer to establish and operate Ben & Jerry's Scoop Shops. However, the developer's use of the Proprietary Marks and the System is explicitly tied to their adherence to the terms and conditions set forth in the agreement. This ensures that the developer operates within the established standards and guidelines of the Ben & Jerry's franchise system.
Ben & Jerry's also retains certain rights, including the right to establish or license others to establish businesses under the Proprietary Marks and the System outside the Development Area. This means that while the developer has exclusive rights within their designated area, Ben & Jerry's can still expand its brand presence elsewhere. Additionally, Ben & Jerry's retains the right to operate businesses under the Proprietary Marks at Institutional Facilities (such as airports, parks, and educational facilities) within or outside the Development Area, although they must provide written notice to the developer in certain circumstances.
Overall, this grant of rights allows the developer to build and operate Ben & Jerry's Scoop Shops while adhering to the brand's standards and guidelines. However, it's important for the developer to understand the limitations and conditions associated with these rights, as well as Ben & Jerry's retained rights, to ensure a successful and compliant franchise operation.