What are 'Products' defined as in the Ben Jerrys agreement?
Ben_Jerrys Franchise · 2025 FDDAnswer from 2025 FDD Document
- 1.4 Except as otherwise provided in this Agreement, during the term of this Agreement, BEN & JERRY'S shall not establish or operate, nor license any other person to establish or operate, a Scoop Shop, or other types of Ben & Jerry's Shops (collectively, "Shops") selling the Ben & Jerry's Products and Non-Proprietary Products (collectively, the "Products") at any location within the Territory.
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:
- 7.7 OPERATOR acknowledges that (i) the Ben & Jerry's Products offered and sold under the System are prepared from proprietary recipes developed by and, in some cases, exclusively for BEN & JERRY'S; (ii) the Ben & Jerry's Products are unique and their formulae and manufacturing processes constitute proprietary information that is essential to the success of the System; and (iii) BEN & JERRY'S has the absolute right to make any and all changes to, and to vary, the Ben & Jerry's Products; the packaging; the package, tub and container sizes, weights, volumes and shapes; the fill levels; the product flavors and varieties; and the formulations and specifications of the Ben & Jerry's Products, including the texture, quality, "piece count," creaminess, weight, color, density, "chunk weight," and degree of overrun; and BEN & JERRY'S shall have no liability whatsoever to OPERATOR for any impact such changes may have on OPERATOR'S business; and (iv) OPERATOR has entered into this Agreement in order to, among other things, obtain the right to offer and sell the Ben & Jerry's Products.
In order to protect the interest of BEN & JERRY'S in the Ben & Jerry's Products and
- A.
BEN & JERRY'S and its affiliates, as the result of the expenditure of time, skill, effort, and money, have developed a distinctive system (the "System") relating to the establishment and operation of retail frozen dessert businesses, which operate at retail shops that display BEN & JERRY'S interior and exterior trade dress ("Ben & Jerry's Shops") and that are primarily engaged in the sale at the Ben & Jerry's Shop of BEN & JERRY'S products including ice cream, ice milk, sorbet, frozen yogurt, frozen desserts, toppings, confections, novelties, fountain ingredients, and other food and beverage items, as well as proprietary gift products (the "Ben & Jerry's Products") and a limited selection of complementary and compatible products, including non-proprietary gift products, approved by BEN & JERRY'S (the "Non-Proprietary Products"), and which operate under the Proprietary Marks (as defined below).
Source: Item 22 — CONTRACTS (FDD pages 133–134)
What This Means (2025 FDD)
According to Ben Jerrys's 2025 Franchise Disclosure Document, 'Products' are defined as the Ben & Jerry's Products and Non-Proprietary Products. Ben & Jerry's Products include ice cream, ice milk, sorbet, frozen yogurt, frozen desserts, toppings, confections, novelties, fountain ingredients, other food and beverage items, and proprietary gift products. Non-Proprietary Products are defined as a limited selection of complementary and compatible products, including non-proprietary gift products, approved by Ben & Jerry's.
For a Ben Jerrys franchisee, this means they are primarily engaged in selling Ben & Jerry's Products, but can also sell Non-Proprietary Products with approval from Ben & Jerry's. Ben & Jerry's retains the right to change the range, types, and nature of the Products and Other Items, package sizes, packaging, product varieties, formulations, and specifications, at any time and without notice.
This definition is important because franchisees are generally restricted to selling only approved products. If a franchisee wants to sell a new product, they must request written authorization from Ben & Jerry's, and Ben & Jerry's may deny such approval for any reason. This ensures that all Ben Jerrys locations maintain a consistent product offering and brand image.