Ben & Jerry’s seeks injunction against parent company as Israel legal battle goes on

In court hearing, ice cream maker seeks to block future transfer of branding and intellectual property to Ben & Jerry’s Israel

Luke Tress is a JTA reporter and a former editor and reporter in New York for The Times of Israel.

Ice cream containers at the Ben and Jerry's factory near Kiryat Malachi, on July 21, 2021. (Flash90)
Ice cream containers at the Ben and Jerry's factory near Kiryat Malachi, on July 21, 2021. (Flash90)

NEW YORK — Ben & Jerry’s sought an injunction in a New York court on Monday against its parent company amid an ongoing legal battle sparked by the US ice cream maker’s attempted boycott of West Bank settlements last year.

The Vermont-based company is seeking to prevent its parent firm Unilever from transferring intellectual property and branding to Ben & Jerry’s Israel, which Unilever granted independence in a settlement earlier this year.

Ben & Jerry’s lawyers argued in the hearing that Ben & Jerry’s Israel could usurp the company’s image by taking a new flavor and changing its branding. For example, Ben & Jerry’s could make a flavor in support of Palestinians, and the Israel branch could then take the same flavor and brand it as pro-settlement, the lawyers argued. Ben & Jerry’s considers the branding surrounding its social mission and activism as key to its business success.

As evidence, the company’s lawyers pointed to the Ben & Jerry’s Israel website, which displays some images of the company’s branding in English, and an interview Israeli franchise owner Avi Zinger gave to Haaretz last month, in which he said he “can do what he wants” with the company.

Lawyers representing Conopco, the main US branch of Unilever, said Ben & Jerry’s does not have the authority to make such demands because the intellectual property is owned by Unilever, and Unilever’s agreement with Ben & Jerry’s Israel is already closed.

The Ben & Jerry’s board, which is pressing the case, only has limited power related to its social mission, and does not have the authority to force business decisions, Conopco’s lawyers argued.

Defense lawyer David Marriott also said there was no imminent threat to Ben & Jerry’s branding, calling the suspicions of potential harm to the company “highly speculative and remote,” and that the agreement with Ben & Jerry’s Israel only allows the use of Hebrew and Arabic branding anyway.

The judge has not yet ruled on the injunction. The hearing took place in the federal Southern District Court of New York.

Pro-Israel demonstrators protest against Ben & Jerry’s over its boycott of the West Bank, and against antisemitism, in Manhattan, New York City, on August 12, 2021 (Luke Tress/Flash90)

Last year, Ben & Jerry’s announced a boycott of “occupied Palestinian territory.” The decision sparked massive financial blowback for Unilever, as US states enacted anti-BDS divestment laws, pulling hundreds of millions of dollars in investments from the conglomerate.

Zinger and his company refused to comply with the settlement boycott, arguing it was illegal under Israeli and US law. Their license to sell the ice cream was set to expire at the end of 2022, meaning the boycott never came into effect.

Ben & Jerry’s Israel sued Unilever over the dispute in the US in March, claiming Unilever unlawfully terminated their business contract.

In June, Unilever settled with Ben & Jerry’s Israel, granting the Israeli branch independence to sell its products indefinitely in Israel and the West Bank, using Hebrew and Arabic branding. Under the agreement, Ben & Jerry’s has no authority over the Israeli franchise.

Shortly after that agreement was announced, Ben & Jerry’s sought to block the deal by suing Conopco in US federal court, arguing that Unilever breached its acquisition deal with Ben & Jerry’s, which gave the ice cream maker’s board some independence. Unilever and Ben & Jerry’s had been out of sync on the settlement boycott since the start and seemed to be increasingly at odds. The legal filing appeared to be the first direct legal dispute between the two sides over the issue.

Monday’s hearing was the latest development in that case. The court previously denied a Ben & Jerry’s request for a temporary restraining order and preliminary injunction against Unilever’s agreement with Zinger.

The lawsuit focuses on the autonomy of the Ben & Jerry’s board and its commitment to its “core values” and social mission, which the company says is integral to its identity and business success. Ben & Jerry’s says its owners violated agreements related to its board and social commitments by transferring the brand to the Israeli branch.

When Unilever acquired Ben & Jerry’s in 2000, it granted the board autonomy “for safeguarding the integrity of the essential elements of the Ben & Jerry’s brand-name,” the lawsuit said.

Pedestrians walk on Church Street, past the Ben & Jerry’s shop, in Burlington, Vermont, March 11, 2020. (AP Photo/Charles Krupa)

Ben & Jerry’s is a wholly-owned subsidiary of Unilever, despite its board’s independence on some matters. Unilever is a UK-based conglomerate and one of the largest consumer goods companies in the world, with some 400 brands and a market value of around $116 billion.

The convoluted case has been a thorn in the side for Unilever, highlighting both the difficulty of enacting economic boycotts meant to isolate Israel, and the pitfalls of progressive corporate activism for large businesses.

Last year’s boycott announcement came after the company was already under heavy pressure from progressive and anti-Israel activists to condemn the Jewish state, during a conflict between Israel and Gaza terror groups.

The decision sparked uproar in Israel and among some US Jewish groups, many of whom called it antisemitic, since the company has no boycotts against any other area of the world.

Critics of the attempted West Bank boycott note that Ben & Jerry’s allows its products to be sold in states with atrocious human rights records, including Russia, Saudi Arabia, Syria, Iran, and China. The company has not taken action regarding other disputed territories including Tibet, Crimea, Western Sahara, and Kashmir.

Supporters of the Boycott Israel movement say that in urging businesses, artists, and universities to sever ties with Israel, they are using nonviolent means to oppose unjust policies toward Palestinians. Israel says the movement masks its motives to delegitimize and destroy the Jewish state.

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