Can Ben Jerrys operate businesses under other proprietary marks within the Territory?
Ben_Jerrys Franchise · 2025 FDDAnswer from 2025 FDD Document
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);
1.4.3 To acquire, be acquired by, own and/or operate, and license others to operate, businesses under other proprietary marks and other systems, whether such businesses are similar or different from the Scoop Shop, at any location within or outside the Territory;
1.4.4 To own, acquire, establish, and/or operate and license others to establish and operate, Shops under the Proprietary Marks at limited purpose, limited access, and captive audience facilities, and other types of institutional accounts (which shall include airports and other public transportation facilities, parks, stadiums, business and industrial and military complexes, theaters, amusement centers, museums, educational facilities, hospitals and other health care facilities, and art centers) (collectively, "Institutional Facilities ") at any location within or outside the Territory.
Source: Item 22 — CONTRACTS (FDD pages 133–134)
What This Means (2025 FDD)
According to Ben Jerrys's 2025 Franchise Disclosure Document, Ben & Jerry's and its affiliates retain the rights to operate businesses under other proprietary marks within or outside the franchisee's territory. However, these businesses must not operate under the Ben Jerrys system and cannot be retail ice cream, sorbet, frozen yogurt, or other frozen dessert businesses. This means Ben Jerrys can engage in other business ventures, even those with different brand names, within the franchisee's territory, as long as they do not directly compete with the Ben Jerrys Scoop Shop model.
This provision protects Ben Jerrys's ability to diversify its business interests without being restricted by the territories granted to franchisees. It also clarifies that the franchisee's rights are limited to operating a Ben Jerrys Scoop Shop and do not extend to preventing Ben Jerrys from pursuing other business opportunities. This could include ventures in completely different industries or related food businesses that don't directly overlap with the Scoop Shop's offerings.
For a prospective franchisee, this means that Ben Jerrys could potentially operate other types of businesses, possibly even food-related, within the same territory as their Scoop Shop. While these businesses cannot be direct competitors selling the same frozen desserts under a different brand, they could still draw customers or resources away from the franchisee's business. It is important for potential franchisees to understand this clause and consider its potential impact on their investment.
It is also important to note that Ben Jerrys retains the right to establish Scoop Shops under the Proprietary Marks at limited purpose, limited access, and captive audience facilities, and other types of institutional accounts (which shall include airports and other public transportation facilities, parks, stadiums, business and industrial and military complexes, theaters, amusement centers, museums, educational facilities, hospitals and other health care facilities, and art centers) at any location within or outside the Territory.