What constitutes misuse of the Proprietary Marks by a Ben Jerrys operator?

OR'S use in connection with the Scoop Shop.

8. PROPRIETARY MARKS

BEN & JERRY'S represents with respect to the Proprietary Marks that:

• 8.1 An affiliate of BEN & JERRY'S ("TM Affiliate") is the registered owner of the Proprietary Marks for the United States. Through a license with TM Affiliate, BEN & JERRY'S holds a license to use, and to license others to use, the Proprietary Marks in the manner contemplated by this Agreement.

• 8.1.1 BEN & JERRY'S and TM Affiliate will take all steps reasonably necessary to preserve and protect the ownership and validity in and to the Proprietary Marks.

• 8.2 OPERATOR's right to use the Proprietary Marks is limited to such uses as are authorized under this Agreement, and any unauthorized use thereof shall constitute an infringement of rights of BEN & JERRY'S and TM Affiliate.

• 8.3 With respect to OPERATOR's use of the Proprietary Marks, OPERATOR agrees to:

• 8.3.1 Use only the Proprietary Marks designated by BEN & JERRY'S, and to use them only in the manner authorized and permitted by BEN & JERRY'S;

• 8.3.2 Use the Proprietary Marks only for the operation and marketing of the Scoop Shop, and in connection with Off-Premises Activities, On-Demand Sales and Mobile Vending that have been approved by BEN & JERRY'S;

• 8.3.3 Operate and advertise the Scoop Shop only under the name "Ben & Jerry's," and use the Proprietary Marks without prefix or suffix, unless otherwise authorized or required by BEN & JERRY'S. OPERATOR shall not use the Proprietary Marks (including BEN & JERRY'S service marks), the abbreviations "B&J" or "BJ," or any name that is now, or in the future, used for the Ben & Jerry's Products, or any marks confusingly similar to any of them as part of its corporate, partnership, or other legal name, or to identify OPERATOR or the Scoop Shop in other legal or financial capacity (including in connection with bank checks, bank accounts, and other financial accounts), or as part of any e-mail address, domain name, or other identification of OPERATOR or the Scoop Shop in any electronic medium, unless agreed to in advance, in writing, by BEN & JERRY'S. OPERATOR may, as necessary to conduct the business of the Scoop Shop and to obtain governmental licenses and permits for the Scoop Shop, indicate that OPERATOR shall be operating the Scoop Shop under the trade name "Ben & Jerry's," provided that OPERATOR shall also clearly identify itself as the owner and operator of the Scoop Shop;

• 8.3.4 Identify itself as the owner of the Scoop Shop (in the manner required by BEN & JERRY'S) in conjunction with any use of the Proprietary Marks, including on invoices, order forms, receipts, and business stationery, as well as at such conspicuous locations on the Premises as BEN & JERRY'S may designate in writing;

• 8.3.5 Not use the Proprietary Marks to incur any obligation or indebtedness on behalf of BEN & JERRY'S;

• 8.3.6 Not use the Proprietary Marks, or authorize any employee, contractor, officer or director of OPERATOR to use or have a title that contains the Proprietary Marks, in any manner that states or implies that the OPERATOR, employee, contractor, officer or director holds a position with BEN & JERRY'S.

• 8.3.7 Execute any documents deemed necessary by BEN & JERRY'S to obtain protection for the Proprietary Marks or to maintain their continued validity and enforceability; and

• 8.3.8 Promptly notify BEN & JERRY'S of any suspected unauthorized use of the Proprietary Marks, any challenge to the validity of the Proprietary Marks, or any challenge to TM Affiliate's ownership of, the right of BEN & JERRY'S to use and to license others to use, or OPERATOR's right to use, the Proprietary Marks. OPERATOR acknowledges that BEN & JERRY'S and TM Affiliate have the sole right to direct and control any administrative proceeding or litigation involving the Proprietary Marks, including any settlement thereof.

Source: Item 22 — CONTRACTS (FDD pages 133–134)