What constitutes a default of the Ben Jerrys agreement regarding the use of Proprietary Marks after termination?
Ben_Jerrys Franchise · 2025 FDDAnswer from 2025 FDD Document
OPERATOR acknowledges and agrees that the unauthorized use of the Proprietary Marks, or any reproduction, counterfeit, copy, or colorable imitation of the Proprietary Marks in violation of this Section constitutes a default of this Agreement and will cause irreparable harm to BEN & JERRY'S.
BEN & JERRY'S will notify OPERATOR in the event that BEN & JERRY'S determines that any of the violations as described in this Section 16.5 have occurred.
Ben & JERRY'S has the exclusive right to determine what is likely to cause confusion, mistake, or deception, what is likely to dilute the rights of BEN & JERRY'S in and to the Proprietary Marks, and what suggests or represents a present or former association or connection with BEN & JERRY'S, the System, or the Proprietary Marks.
Source: Item 22 — CONTRACTS (FDD pages 133–134)
What This Means (2025 FDD)
According to Ben Jerrys's 2025 Franchise Disclosure Document, an operator's unauthorized use of the Proprietary Marks, or any reproduction, counterfeit, copy, or colorable imitation of the Proprietary Marks, constitutes a default of the agreement. This includes using the marks in a way that is likely to cause confusion, mistake, or deception, or that dilutes Ben Jerrys's rights to the marks. Ben Jerrys has the exclusive right to determine what constitutes a violation.
Specifically, after termination or expiration of the agreement, the operator must immediately and permanently cease using the Proprietary Marks. This includes the name "Ben & Jerry's" and all other Proprietary Marks, distinctive forms, slogans, signs, symbols, and devices associated with the Ben Jerrys system. The operator must stop using all signs, marketing materials, displays, stationery, email addresses, forms, products, and any other articles that incorporate or display the Proprietary Marks.
Furthermore, the operator must take necessary actions to cancel any assumed name registration or equivalent registration containing the mark "Ben & Jerry's" or any other Proprietary Marks within five days of termination or expiration. Continuing to operate any other business and using any confusingly similar imitation of the Proprietary Marks, or using any designation that suggests a former association with Ben & Jerrys, also constitutes a default.
These stipulations are in place to protect Ben Jerrys's brand and prevent consumer confusion. A prospective franchisee should understand the importance of adhering to these restrictions to avoid legal repercussions and maintain a clear separation from the Ben Jerrys brand after the franchise agreement ends.