Who has the right to direct and control any litigation involving the Proprietary Marks for Ben Jerrys?
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, Ben Jerrys retains the right to direct and control any administrative proceeding or litigation involving its Proprietary Marks, including any settlement decisions. This means that as a franchisee, you would be required to notify Ben Jerrys of any unauthorized use or challenges to the validity of the Proprietary Marks.
This provision is typical in franchise agreements, as the franchisor needs to protect its brand and trademarks. While Ben Jerrys has the right, but not the obligation, to take action against uses by others that may constitute infringement of the Proprietary Marks, they will defend you against any third-party claim, suit, or demand arising out of your use of the Proprietary Marks if you have used them in accordance with the Franchise Agreement.
If litigation arises from your use of the Proprietary Marks in a manner consistent with the Franchise Agreement, Ben Jerrys will cover the cost of defense, including any judgment or settlement, but not the salary costs of your employees. You are also required to execute all documents and do all things necessary to carry out a defense or prosecution, including becoming a nominal party to any legal action. Unless the litigation results from your misuse of the Proprietary Marks, Ben Jerrys will reimburse you for your out-of-pocket costs.