Is an operator's right to use the Proprietary Marks for Ben Jerrys limited, and if so, how?
Ben_Jerrys Franchise · 2025 FDDAnswer from 2025 FDD Document
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. BEN & JERRY'S and TM Affiliate have the right, but not the obligation, to take action against uses by others that may constitute infringement of 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 right to use the Proprietary Marks is limited to the uses authorized under the Franchise Agreement. Any unauthorized use constitutes an infringement of the rights of Ben Jerrys and its TM Affiliate. The operator must use only the Proprietary Marks designated by Ben Jerrys and only in the manner authorized and permitted. They are restricted to using the marks for the operation and marketing of the Scoop Shop, as well as approved Off-Premises Activities, On-Demand Sales, and Mobile Vending. The operator must operate and advertise the Scoop Shop only under the name "Ben & Jerry's," using the Proprietary Marks without any prefix or suffix, unless otherwise authorized or required by Ben Jerrys.
Furthermore, the operator cannot use the Proprietary Marks, including Ben Jerrys's service marks, the abbreviations "B&J" or "BJ," or any name currently or in the future used for Ben Jerrys Products, or any confusingly similar marks, as part of its corporate, partnership, or other legal name. This restriction extends to identifying the operator or the Scoop Shop in any legal or financial capacity, including bank checks, bank accounts, and other financial accounts, or as part of any e-mail address, domain name, or other electronic medium identification, unless agreed to in advance and in writing by Ben Jerrys. The operator must also identify itself as the owner of the Scoop Shop in conjunction with any use of the Proprietary Marks, including on invoices, order forms, receipts, and business stationery, as well as at conspicuous locations on the premises as designated by Ben Jerrys in writing.
The operator is prohibited from using the Proprietary Marks to incur any obligation or indebtedness on behalf of Ben Jerrys. They also cannot use the Proprietary Marks, or authorize any employee, contractor, officer, or director 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 Jerrys. The operator must execute any documents deemed necessary by Ben Jerrys to protect the Proprietary Marks or maintain their validity and enforceability. Additionally, the operator is required to promptly notify Ben Jerrys of any suspected unauthorized use of the Proprietary Marks or any challenges to their validity or ownership.
Ben Jerrys and its TM Affiliate retain the sole right to direct and control any administrative proceeding or litigation involving the Proprietary Marks, including any settlement. While Ben Jerrys and its TM Affiliate have the right, but not the obligation, to take action against uses by others that may infringe upon the Proprietary Marks, Ben Jerrys will defend the operator against any third-party claim, suit, or demand arising out of the operator's use of the Proprietary Marks, provided that Ben Jerrys determines the operator has used the marks in accordance with the agreement.