Does Ben Jerrys have the right to operate Shops outside 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 retains the right to operate Shops outside a franchisee's territory. Specifically, Ben Jerrys can own, acquire, establish, and/or operate and license others to establish and operate, Shops selling the Products at any location outside the Territory. This means that while a franchisee is granted rights within their specific territory, Ben Jerrys is not restricted from opening its own stores or licensing others to do so in other areas.
This clause also extends to various business models and locations. Ben Jerrys reserves the right to operate businesses under its trademarks, even within or outside a franchisee's territory, as long as these businesses do not operate under the Ben Jerrys system and are not retail ice cream, sorbet, frozen yogurt, and/or other frozen dessert businesses. Additionally, Ben Jerrys can operate or license businesses under other proprietary marks and systems, whether similar or different from the Scoop Shop model, at any location within or outside the franchisee's territory.
Furthermore, Ben Jerrys maintains the right to establish Shops under its trademarks at specific locations such as airports, parks, stadiums, business complexes, educational facilities, and hospitals, regardless of whether these Institutional Facilities are within or outside the franchisee's territory. This broad reservation of rights allows Ben Jerrys to expand its brand presence through various channels and locations, which may or may not directly compete with individual franchisees, but certainly carves out exceptions to any perceived exclusivity a franchisee might expect.