Does the Ben Jerrys agreement limit the rights reserved under Section 1.4.4?
Ben_Jerrys Franchise · 2025 FDDAnswer from 2025 FDD Document
, a Scoop Shop, or other types of Ben & Jerry's Shops (collectively, "Shops") selling the Ben & Jerry's Products and Non-Proprietary Products (collectively, the "Products") at any location within the Territory. BEN & JERRY'S and its affiliates retain the rights, among others, on any terms and conditions BEN & JERRY'S deems advisable, and without granting OPERATOR any rights therein:
1.4.1 To own, acquire, establish, and/or operate and license others to establish and operate, Shops selling the Products at any location outside the Territory;
1.4.2 To own, acquire, establish and/or operate and license others to establish and operate, businesses under the Proprietary Marks, at any location within or outside the Territory but which do not operate under the System and are not operating retail ice cream, sorbet, frozen yogurt and/or other frozen dessert businesses (this provision in no way limits the other rights reserved under Section 1.4.4);
Source: Item 22 — CONTRACTS (FDD pages 133–134)
What This Means (2025 FDD)
According to Ben Jerrys's 2025 Franchise Disclosure Document, the franchise agreement does not limit the rights reserved under Section 1.4.4. Section 1.4.2 includes a provision stating that it 'in no way limits the other rights reserved under Section 1.4.4'.
This means that Ben Jerrys retains specific rights regarding the operation of other businesses under its trademarks, particularly in locations such as Institutional Facilities, without those rights being diminished by other clauses in the agreement. Institutional Facilities are defined as limited purpose, limited access, and captive audience facilities, including airports, parks, stadiums, and educational facilities.
For a prospective franchisee, this indicates that Ben Jerrys can operate or license others to operate Ben Jerrys shops in Institutional Facilities, regardless of the franchisee's territory or authorized location. This could potentially lead to competition within the same general area, although in specific, limited-access venues. The franchisee should consider the potential impact of these reserved rights on their business and discuss any concerns with Ben Jerrys before signing the agreement.