Who has the sole right to direct and control any litigation involving the Proprietary Marks for Ben Jerrys?
Ben_Jerrys Franchise · 2025 FDDAnswer from 2025 FDD Document
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.
BEN & JERRY'S shall defend OPERATOR against any third-party claim, suit, or demand arising out of OPERATOR's use of the Proprietary Marks.
If BEN & JERRY'S, in its sole discretion, determines that OPERATOR has used the Proprietary Marks in accordance with this Agreement,
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 TM Affiliate have the sole right to direct and control any administrative proceeding or litigation involving the Proprietary Marks, including any settlement. This means that Ben Jerrys, not the franchisee, has the authority to manage and settle any legal matters related to the brand's trademarks.
This provision protects the integrity and value of the Ben Jerrys brand. By retaining control over trademark litigation, Ben Jerrys ensures consistent legal strategies and outcomes that align with the overall brand protection efforts. This is a common practice in franchising, as franchisors need to safeguard their trademarks, which are critical assets.
For a prospective Ben Jerrys franchisee, this means they will not have the authority to independently pursue or defend legal actions related to the Ben Jerrys trademarks. However, Ben Jerrys is obligated to defend the franchisee against third-party claims arising from the franchisee's authorized use of the Proprietary Marks. The franchisee must promptly notify Ben Jerrys of any suspected unauthorized use of the Proprietary Marks or any challenges to their validity.