What must a Ben Jerrys franchisee do if they notice unauthorized use of the Proprietary Marks?
Ben_Jerrys Franchise · 2025 FDDAnswer from 2025 FDD Document
You must promptly notify us of any unauthorized use of the Proprietary Marks, any challenge to the validity of the Proprietary Marks, or any challenge to our ownership of, or right to use and to license others to use, or your right to use, the Proprietary Marks. We have the right to direct and control any administrative proceeding or litigation involving the Proprietary Marks, including any settlement. We have the right, but not the obligation, to take action against uses by others that may constitute infringement of the Proprietary Marks. We will defend you against any third-party claim, suit, or demand arising out of your use of the Proprietary Marks. If we determine that you have used the Proprietary Marks in accordance with the Franchise Agreement you have signed to operate the Shop, we will bear the cost of defense, including the cost of any judgment or settlement; however, you must bear the salary costs of your employees. If we determine that you
have not used the Proprietary Marks in accordance with the Franchise Agreement you signed to operate the Shop, you must bear the cost of defense, including the cost of any judgment or settlement. If there is any litigation relating to your use of the Proprietary Marks, you must execute all documents and do all things as may be necessary to carry out a defense or prosecution, including becoming a nominal party to any legal action. Unless litigation results from your use of the Proprietary Marks in a manner inconsistent with the terms of the Franchise Agreement we will reimburse you for your out-of-pocket costs.
Source: Item 13 — TRADEMARKS (FDD pages 64–65)
What This Means (2025 FDD)
According to Ben Jerrys's 2025 Franchise Disclosure Document, a franchisee is required to take specific actions if they become aware of any unauthorized use of the Proprietary Marks. The franchisee must promptly notify Ben Jerrys of any unauthorized use of the Proprietary Marks, any challenge to the validity of the marks, or any challenge to Ben Jerrys's ownership or right to use and license the marks. This immediate notification is crucial for Ben Jerrys to take appropriate action to protect its brand and intellectual property.
Ben Jerrys retains the right to direct and control any administrative or legal proceedings related to the Proprietary Marks, including settlements. While Ben Jerrys has the right, it is not obligated, to take action against infringements of the Proprietary Marks by others. Ben Jerrys will defend a franchisee against third-party claims arising from the franchisee's use of the Proprietary Marks, provided that the franchisee has used the marks in accordance with the Franchise Agreement.
If the franchisee's use of the Proprietary Marks complies with the Franchise Agreement, Ben Jerrys will cover the costs of defense, including judgments or settlements, but the franchisee is responsible for their employees' salaries. Conversely, if the franchisee's use of the marks violates the Franchise Agreement, the franchisee must bear all defense costs, including judgments and settlements. Franchisees must also execute all necessary documents and actions to support the defense or prosecution of any litigation, potentially including becoming a nominal party in legal actions. Ben Jerrys will reimburse franchisees for out-of-pocket costs related to litigation, unless the litigation arises from the franchisee's non-compliant use of the Proprietary Marks.