Ali Abunimah
The Electronic Intifada / December 16, 2022
The legal dispute between Ben & Jerry’s and its parent company Unilever has ended in a bit of a fudge.
But as a result, the ice cream maker can say that it is standing by its July 2021 decision to end all business in Israel so as not to be complicit in Israel’s illegal colonization of occupied Palestinian land.
That being the case, the outcome can be seen as a win for supporters of Palestinian rights.
On Thursday, Unilever said it was “pleased to announce that the litigation with Ben & Jerry’s Independent Board has been resolved.”
But the one-sentence statement provided no further details about the settlement.
A Unilever representative told the Jewish Telegraphic Agency that the terms were confidential.
On Friday morning, Ben & Jerry’s had issued no press release of its own.
“Nothing to add from our side,” was the company spokesperson’s brief response to The Electronic Intifada’s request for comment.
However a page on Ben & Jerry’s website titled “Where we do business” provides some clues about the terms of the deal.
The page lists more than 40 countries by name where Ben & Jerry’s frozen treats can be purchased. Israel is not among them.
There is also this disclaimer: “Unilever has sold trademark rights to the Hebrew and Arabic language versions of the Ben & Jerry’s name to Blue & White Ice Cream Ltd. No English language trademark of the Ben & Jerry’s Homemade Inc. has been transferred to Blue & White Ice Cream Ltd. Blue & White Ice Cream Ltd. is a completely separate and distinct entity from Ben & Jerry’s Homemade Inc. Ben & Jerry’s has no ownership of or economic interest in Blue & White Ice Cream Ltd.”
Blue & White Ice Cream is the former Ben & Jerry’s licensee, and now owner of Ben & Jerry’s Hebrew and Arabic trademarks in Israel.
As recently as November, the same webpage named Israel among the countries where Ben & Jerry’s does business, and the disclaimer was not there.
Getting out of Israel
Recall that in July 2021, Ben & Jerry’s decided that it would end a longstanding licensing agreement that allowed its products to be manufactured and sold in Israel and the occupied West Bank.
That followed years of campaigns by Palestinian rights activists.
A year later, however, Unilever announced that it had sold the Ben & Jerry’s brand and trademark in Israel to the Israeli licensee.
Under this deal, the ice cream would continue to be marketed throughout Israel and the occupied West Bank using Ben & Jerry’s name and logo in Hebrew and Arabic.
Unilever later admitted that it made the move under threats and pressure from Israel and its lobby.
But Ben & Jerry’s disputed Unilever’s right to make the deal without the approval of its board and sued its parent company.
Ben & Jerry’s is famous for taking progressive stances on various social and environmental issues.
The heart of Ben & Jerry’s case was that when Unilever bought the Vermont-based ice cream in 2000, it agreed to the creation of an independent board that would maintain the integrity of its social mission.
Ben & Jerry’s argued that Unilever violated this independence when it sold the trademarks to the Israeli company.
In mid-November, Ben & Jerry’s issued a statement repudiating the ice cream distributed under its name in Israel and the occupied West Bank by the Israeli company.
“Without the consent of Ben & Jerry’s Independent Board, Unilever has sold trademark rights to the Hebrew and Arabic language versions of the Ben & Jerry’s name to Blue & White Ice Cream Ltd,” the Ben & Jerry’s board said.
“Any products sold by Blue & White Ice Cream Ltd. are uniquely its own and should not be confused with products produced and distributed by Ben & Jerry’s Homemade Inc,” the board added.
Ben & Jerry’s also affirmed that “the sale of products bearing any Ben & Jerry’s insignia in the occupied Palestinian territory is against our values. Such sales are inconsistent with international law, fundamental human rights and Ben & Jerry’s social mission.”
In its lawsuit, Ben & Jerry’s asked for the return of its trademarks in Israel and other measures to prevent Unilever further implementing the deal. It also asked for financial compensation.
It would therefore appear that under the terms of the settlement Ben & Jerry’s has dropped its legal challenge to Unilever’s sale of the ice cream maker’s intellectual property to Blue and White Ice Cream.
At the same time, Unilever appears to have accepted that Ben & Jerry’s will continue to repudiate the product sold in Israel and any connection to the Israeli company that makes it.
Social mission
Contrary to their initial bragging, Israel and its lobby have been unable to force Ben & Jerry’s – the real Ben & Jerry’s – to do business in Israel and its colonial settlements against its will.
Court filings in the context of the lawsuit revealed that Ben & Jerry’s executives felt intense global grassroots pressure to end sales in Israeli settlements on occupied Palestinian land.
Company officials and employees concluded that their credibility on other social issues would be fatally compromised if Ben & Jerry’s did not take a principled stance on Palestine.
But Unilever and the CEO it appointed to run Ben & Jerry’s continued to drag their feet prompting the independent board to announce in July 2021 that it would terminate its agreement with its Israeli licensee and thus end sales throughout Israel and the occupied West Bank.
Filings also revealed that Ben & Jerry’s board members faced such severe threats and intimidation following the decision to stop doing business in Israel that some had to hire security and effectively go into hiding.
Not the real thing
The confidential settlement does leave some questions unanswered: When Ben & Jerry’s introduces new flavors or changes its product design in the future, will the company in Vermont be required to share any of that intellectual property with Blue & White Ice-Cream Ltd?
It seems inconceivable that Ben & Jerry’s would have agreed to that given its statement in November, but the fact is we do not know.
And what would happen if Blue & White Ice Cream attempted to copy new Ben & Jerry’s products without permission?
Does the settlement ending the lawsuit restrain the Israeli company – which was not a party to the lawsuit – from introducing flavors with names indicating support for Israel’s anti-Palestinian policies or contradicting other aspects of the genuine Ben & Jerry’s company’s social mission?
In July, Avi Zinger, the owner of Blue & White Ice-Cream, suggested he would be free to rename Ben & Jerry’s Chunky Monkey flavor as “Judea and Samaria” – the pseudo-biblical name Israel gives to the West Bank in order to try to legitimize its illegal claims to sovereignty over the occupied territory.
Zinger said on Thursday “that he was ‘pleased’ with the agreement and that it would not require him to change his own business practices,” according to the Jewish Telegraphic Agency.
“I look forward to continuing to produce and sell the great tasting Ben & Jerry’s ice cream under the Hebrew and Arabic trademarks throughout Israel and the West Bank long into the future,” Zinger said.
Zinger going to the press – when Unilever and Ben & Jerry’s are remaining largely silent – may be an effort by the Israeli businessman to put a positive spin on what in the big picture amounts to an embarrassing loss.
The agreement clearly involved the compromises needed to end what was shaping up to be a bitter, costly and perhaps years-long legal battle, but the upshot is that Unilever has been unable to force its will on Ben & Jerry’s independent board.
And on the key point Ben & Jerry’s is crystal clear: It no longer does any business in Israel and the ice cream that’s sold there with its branding is simply not the real thing.
Ali Abunimah is co-founder of The Electronic Intifada and author of The Battle for Justice in Palestine (Haymarket Books)
