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Court Denies Ben & Jerry’s Request to Stop Unilever’s Already-Consummated Sale of Ice Cream Maker’s Israeli Business

Court Denies Ben & Jerry’s Request to Stop Unilever’s Already-Consummated Sale of Ice Cream Maker’s Israeli Business

Judge denies Ben & Jerry’s woke board’s moot motion and rejects its claims of speculative injuries.

On August 22, Judge Andrew L. Carter, Jr., denied Ben & Jerry’s motion for an injunction in its lawsuit against its corporate owner, Unilever.

We’ve previously covered the controversy here:

To recap briefly, Ben & Jerry’s “brand integrity” board sued Unilever to stop it from selling the ice cream maker’s business in Israel to its long-term Israeli licensee/manufacturer/distributor, Avi Zinger and his company, American Quality Products Limited (AQP). This, despite the fact that Ben & Jerry’s didn’t raise the issue in the same case or even sue in the same court adjudicating Zinger’s suit against – and now settlement with – Unilever.

Unilever completed the sale to/irrevocable license with Zinger in June. So what’s the rush? The judge found that there wasn’t any.

During an August 8 telephonic hearing on the motion for a preliminary injunction, the judge seemed underwhelmed by Ben & Jerry’s claim that it might create a new flavor to which Zinger might give a different interpretation, all of which might cause Ben & Jerry’s fan club to look askance at it.

The judge wanted to know more about the ice cream company’s claim there was imminent danger Unilever would sell rights to its normal, English-language trademark to Zinger. (Zinger had been sold or irrevocably licensed the right to use Ben & Jerry’s name in Hebrew and Arabic, not in English.) Because the issue was first raised during the hearing, Unilever was caught a little flat-footed.

Its lawyers followed up the next day with a letter to the judge, explaining a sale of rights to the English-language trademark wasn’t in the offing:

This firm represents Defendant Conopco, Inc. (“Conopco”) in the above-titled matter. During oral argument, Your Honor asked how past distribution of Ben & Jerry’s ice cream in Israel would compare to future distribution, and I was unable to provide a complete answer as to past practice. What I can now tell the Court is that: historically, the Ben & Jerry’s name (and other variant names used in the business, e.g., Chunky Monkey) have only appeared in English on the packaging used to sell Ben & Jerry’s ice cream in Israel and the West Bank. Under the new business arrangement, Ben & Jerry’s products in Israel and the West Bank will be labeled only with the Hebrew or Arabic language Ben & Jerry’s trademark, and not with English trademarks. What’s more, there is no contemplation of transferring any English trademarks to Mr. Zinger, as those trademarks were expressly excluded from transfer under the Business Transfer Agreement, nor is there contemplation of granting Mr. Zinger any future licenses. Unilever has sold off, and Mr. Zinger is now the owner of, the Ben & Jerry’s business in Israel and the West Bank under the Hebrew and Arabic trademarks; his website will be updated accordingly.

Letter from defense counsel to court. [Click on image to see document.]

The judge’s brief opinion and order stated:

At the August 8 hearing, Plaintiff identified two examples of irreparable harm. First, Plaintiff stated that in the absence of an injunction, the new owners of Ben & Jerry’s products in Israel and the West Bank would have “the ability to undermine [Ben & Jerry’s ability to protest certain issues by launching products] by launching [the] exact same quality products with the exact opposite social mission stance.” Tr. 12:5-7. According to Ben & Jerry’s, the new owners would be able to direct the marketing in Israel and the West Bank of new mission-driven products such that the new owners could represent a contrary message when marketing the products. See Tr. 11:12-12:8. Second and relatedly, Ben & Jerry’s argue that the injunction is needed to prevent “customer confusion as to who owns Ben & Jerry’s social mission.” Tr. 13:12-13.

Neither reason suffices. Such purported harm is too speculative to constitute irreparable harm. The injunctive relief sought cannot issue on the basis of a hypothetical scenario involving several speculative steps, namely that (1) new products will be introduced, (2) those products will seek to convey a particular message, and (3) the new owners then will market those products to convey a contrary message.

The harm of customer confusion regarding Ben & Jerry’s positions is also remote. Ben & Jerry’s has offered no evidence of such confusion or the impact of the alleged confusion. If anything, media reports and this very lawsuit evince Ben & Jerry’s position on the issue. Further, the products sold in Israel and the West Bank will use no English trademarks, instead displaying new Hebrew and Arabic language Ben & Jerry’s trademarks. ECF No. 49. Thus, the products sold in Israel and the West Bank will be dissimilar from other Ben & Jerry’s products, mitigating, if not eliminating, the possibility of reputational harm.

Because Plaintiff fails to establish irreparable harm, the Court does not consider its remaining arguments.

Court order denying Ben & Jerry’s request for an injunction against Unilever. [Click on image to see document.]

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Comments

Subotai Bahadur | August 22, 2022 at 9:07 pm

So which one of them is going to commit a “martyrdom operation” in Israel, Ben or Jerry?

Subotai Bahadur

Couldn’t happen to a nicer pair of commies.

I am 100% sure Ben & Jerry’s lawyers informed them they had no case but they had the arrogance not to care.

I am also sure they received warnings that most of the country is pro-Israel, Europe isn’t pro-Israel but doesn’t care very strongly and not strongly enough for this to be positive press in Europe but that they would run afoul of Red and Blue state anti-BDS legislation.

Pride is listed as a deadly sin for a reason.

I’m sure this will get some jeers as a health food snob but really, these two want to try to take the moral high ground when their stock in trade is throwing as much unhealthy crap into an already high sugar high fat concoction? Spare me….do something to help with the diabesity epidemic in this country if you want to cleanse your soul. Something simple like “our products are unequivocally unhealthy to consume regularly even though they might hyperstimulate some opiate-like receptors in your brain upon consumption”

Not that Zinger needs the English trademark, but I wonder why they specifically excluded that from the sale.

    BobM in reply to Milhouse. | August 23, 2022 at 9:08 am

    Speculating here, but possibly they predicted to themselves B&J’s reaction would be to try to sue to make an Israeli company partake in a boycott of Israel. Given that, and with no need to use an English version of the trademark, this further differentiates the Israeli sales from Other sales making a already silly lawsuit even sillier.

    Now their lawyers have to argue that the public can’t understand that there is a difference between two companies using trademarks no longer identical.

*Anti-Semites Ben & Jerry

Blue Bell & Breyers are so much better. Sometimes Hagen Daz is a nice sugar treat. I have never tasted that “other brand” so don’t know if it’s any good. The labeling, brand name and promo have always been off-putting to my sensibilities.

Two ultra libbies. As usual absolutely ZERO common sense. And these morons claim to be Jewish? Don’t they realize that the Arabs want to eradicate the Jews? My slant on this; Baskin-Robins, or Sealtest, or……

hand each of them a blunt and tell them to go away

Living in Jerusalem, Israel, We are looking forward the the new name and better quality of Mehadren Kosher Glida Ben & Jeris