Can Bens Soft Pretzels sell menu items under different marks than the Trademarks?
Bens_Soft_Pretzels Franchise · 2025 FDDAnswer from 2025 FDD Document
We and our affiliates retain all rights that are not expressly granted to you under this Agreement. Further, we and our affiliates may, among other things, on any terms and conditions we deem advisable, without compensation to any franchisee, and without granting you any rights therein:
- (i) establish and/or license others to establish franchised or company-owned or affiliate-owned Stores at any location, regardless of the proximity of such stores to your Designated Area;
- (ii) merge with, acquire or become associated with ("Merger/Acquisition Activity") any businesses or stores of any kind (including those in competition with BEN'S SOFT PRETZELS) under other systems and/or marks, which businesses and stores may convert to or operate under the Trademarks and may offer or sell menu items, products and services that are the same as or similar to the Menu Items offered at or from the Store, and which may be located anywhere; and
- (iii) sell and distribute for ourselves and/or license others to sell and distribute through franchised businesses or any other method of distribution menu items the same as or different from the Menu Items offered under the System, and which are offered and distributed under marks different than the Trademarks.
We and our affiliates also have the right to offer, sell or distribute any proprietary items or other products or services associated with the System (now or in the future) or identified by the Trademarks, or any other trademarks, service marks or trade names through any distribution channels or methods, without compensation to any franchisee. The distribution channels or methods ("Alternative Methods of Distribution") include, without limitation, grocery stores, club stores, convenience stores, wholesale, business or industry locations (e.g. manufacturing site, office building), military installations, military commissaries or the Internet (or any other existing or future form of electronic commerce).
Source: Item 22 — CONTRACTS (FDD pages 46–47)
What This Means (2025 FDD)
According to the 2025 Bens Soft Pretzels Franchise Disclosure Document, Bens Soft Pretzels and its affiliates have the right to sell and distribute menu items that are either the same as or different from the menu items offered under the Bens Soft Pretzels system. These items can be offered and distributed under marks that are different from the Bens Soft Pretzels trademarks. This means that Bens Soft Pretzels retains the flexibility to introduce new products or services under different branding without requiring franchisees to do so.
This provision allows Bens Soft Pretzels to explore alternative branding strategies and distribution channels without being restricted by the existing franchise agreements. For a franchisee, this means that while they are obligated to operate under the Bens Soft Pretzels trademarks, the franchisor has the liberty to diversify its offerings through different brands. This could potentially lead to increased brand recognition and market reach for the overall Bens Soft Pretzels organization.
However, franchisees should be aware that Bens Soft Pretzels also retains the right to merge with, acquire, or become associated with other businesses, even those that compete with Bens Soft Pretzels. These businesses may operate under different systems and marks and may offer similar menu items. This clause highlights the importance of franchisees understanding the competitive landscape and the potential for the franchisor to engage in activities that could impact their business. Franchisees do not receive compensation for these activities.
Furthermore, Bens Soft Pretzels can distribute proprietary items or services associated with the system through various channels, such as grocery stores or online platforms, under the existing trademarks or other trademarks, without compensating the franchisee. This broad reservation of rights gives Bens Soft Pretzels significant control over brand development and distribution strategies, which may or may not directly benefit individual franchisees.