How do the trademark protections for Ben Jerrys (Item 13) relate to the franchisee's obligations regarding marketing and advertising (Item 9)?
Ben_Jerrys Franchise · 2025 FDDAnswer from 2025 FDD Document
agrees to the following:
12.8.1 BEN & JERRY'S shall have the right, but not the obligation, to establish and maintain a Website, which may, without limitation, promote the Proprietary Marks, any or all of the Products, Shops, the franchising of Shops, and/or the System. BEN & JERRY'S shall have the sole right to control all aspects of the Website, including, without limitation, its design, content, functionality, links to the Websites of third parties, legal notices, contents of Webpages, and policies and terms of usage. BEN & JERRY'S shall also have the right to discontinue operation of the BEN & JERRY'S Website;
12.8.2 OPERATOR shall not establish a separate Website or register any domain name that displays or uses the Proprietary Marks or any marks confusingly similar thereto, or that refers to this Agreement, the Products, BEN & JERRY'S or the System. If OPERATOR registers any domain name in violation of this subsection, in addition to all other rights and remedies of BEN & JERRY'S under this Agreement, BEN & JERRY'S shall have the right, but not the obligation, to require OPERATOR to transfer any such registration(s) to BEN & JERRY'S or its designee, at OPERATOR's expense;
12.8.3 BEN & JERRY'S shall have the right, but not the obligation, to designate one or more Webpage(s) to describe OPERATOR and/or the Scoop Shop, with such Webpage(s) to be located within BEN & JERRY'S Website. OPERATOR shall comply with BEN & JERRY'S policies with respect to the creation, maintenance and content of any such Webpages; and BEN & JERRY'S shall have the right to refuse to post and/or discontinue posting any content and/or the operation of any Webpage; and
12.8.4 BEN & JERRY'S shall have the right to modify its policies and requirements regarding Websites and Webpages as BEN & JERRY'S may determine is necessary or appropriate.
12.9 OPERATOR acknowledges and agrees that any and all copyrights in and to advertising and promotional materials developed by or on behalf of OPERATOR which bear the Proprietary Marks shall be the sole property of BEN & JERRY'S, and OPERATOR agrees to execute such documents (and, if necessary, require its independent contractors to execute such documents) as may be deemed necessary by BEN & JERRY'S to give effect to this provision. Any advertising, marketing, promotional, public relations, or sales concepts, plans, programs, activities, or materials proposed or developed by OPERATOR for the Scoop Shop or the System and approved by BEN & JERRY'S may be used by BEN & JERRY'S and other operators under the System of BEN & JERRY'S without any compensation to OPERATOR.
**13.
What This Means (2025 FDD)
According to Ben Jerrys's 2025 Franchise Disclosure Document, the trademark protections, as indicated by the use of "Proprietary Marks," directly impact a franchisee's marketing and advertising obligations. Ben Jerrys maintains strict control over how its trademarks are used to ensure brand consistency and quality.
A Ben Jerrys franchisee cannot establish a separate website or register a domain name that uses the Proprietary Marks or anything confusingly similar. If a franchisee violates this, Ben Jerrys has the right to demand the transfer of the domain name to them at the franchisee's expense. Ben Jerrys also has the right to designate webpages to describe the franchisee's Scoop Shop on Ben Jerrys's website, and the franchisee must comply with Ben Jerrys's policies regarding these webpages.
Furthermore, Ben Jerrys retains ownership of copyrights for any advertising and promotional materials bearing the Proprietary Marks developed by or for the franchisee. Any marketing plans or materials developed by the franchisee and approved by Ben Jerrys can be used by Ben Jerrys and other franchisees without compensating the original franchisee. This underscores Ben Jerrys's control over its brand and marketing strategies, ensuring uniformity across all franchise locations.
If a Ben Jerrys franchisee wants to use marketing and promotional materials not already provided or approved by Ben Jerrys, they must submit these materials for prior approval, except for pricing. If Ben Jerrys does not provide written disapproval within ten business days of receiving the materials, they are considered approved. This process ensures that all marketing efforts align with Ben Jerrys's brand standards and trademark protections.