Ben & Jerry’s settles lawsuit, freezes out Israel

Ali Abunimah Activism and BDS Beat 16 December 2022

Close up of an ice cream cone with children behind it

After settling a lawsuit against its parent company Unilever, Ben & Jerry’s is standing by its decision to end all its business in Israel.

Rafael Ben-Ari Newscom

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.

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Comments

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Anonymous replied on

I don't see how this can be spun into a win here. Unilever went through with the deal exactly as originally planned, while B&J got, as far as can be seen, nothing that their lawsuit asked for. I've seen no indication that Unilever ever cared if B&J had a disclaimer.

Good on the board for fighting, but right now it looks like they fought and lost.

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Ali Abunimah replied on

Legal settlements rarely provide the clarity everyone wants and so I agree that this one can interpreted in various ways — which is why I called it a fudge. But the reason I think it can still be seen as a win is that it isn’t about the ice cream. That’s what Israel tried to make it about, when the Unilever deal was announced in June 2022. Israel (and its lobby groups) said, look, we are still going to have Ben & Jerry’s ice cream in the settlements so we have defeated the boycott! That was never the point. The point is that Ben & Jerry’s company took a stance that it did not want to do business with Israel, and it ended its business there. It has not reversed that decision. The settlement may be a recognition by Ben & Jerry’s that their power against Unilever is limited. It may have been a calculation that this was a better outcome than the risk of going to trial and losing. But even after all this, they have not backed down from their stance on Palestine and the company is no longer deriving any profits from sales in Israel.

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Alia replied on

I absolutely agree with Ali, its not about the sale of the ice cream, its about Ben&Jerry's ethical stance - it still stands. The ice cream may still be sold there but not in their name (only the Hebrew & Arabic trademark sold).
There now appears to be a 2 tier product - the original Ben&Jerry and what seems to be a sub-standard Hebrew version. It is definitely an insult.
They were unable to force Ben&Jerry to trade with them and that, in my view, is a win.

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rebecca fusco replied on

yes, it kinda didn't sound right to me n somewhat confusing..

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James Barrs replied on

The next time I buy any Ben & Jerry's ice cream with the name on the container being written in English will be in Israel.
Until our ally, Israel, is included in the Ben & Jerry's list of countries that sell their products, I will buy ice cream from a different company.

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Anonymous replied on

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.

"London-based Unilever said in a statement on Wednesday that it sold its Ben & Jerry’s business interests in Israel in June. “The ownership of the brand is different, but the Ben & Jerry’s product is no different to what’s been enjoyed in Israel for many years,” it said in a statement."

https://fortune.com/2022/11/15...

Not sure if your comment that is not the real thing was referring to the product or the name, but this statement negates that position.

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Sally G. replied on

Ben & Jerry‘s wins: no English-language B&J in Israel, credibility for fighting and no longer profiting from sales in Israel/Palestine
Unilever wins: licensing agreement with Blue & White = profits, continued sales in Hebrew and Arabic; end to worries about divestment by those who refuse to do business with companies who participate in BDS
Blue & White win: continue to sell product

Unknown: how customers, activists, politicians, et al. will respond Personally, I am pro B&J (have been since “What’s the dough boy afraid of?” campaign in the 1970s, when Pillsbury tried to block their grocery shelf space in favor of their own Häagen Dazs), and pleased that they defended their rights. Cutting their potential losses at this point was a reasonable decision, from what little we can tell from outside. I will do my best to avoid other Unilever brands, but not focus on it much.

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rebecca fusco replied on

thank you ben n jerry's for taking a stand against evil.. im heading out for some ben n jerry's ice cream! ppl you shld too! kudos..

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Russell Ward replied on

I think it’s a win BDS supporters can and do eat an ice cream and feel good that their pictures on Instagram etc are a sign of BDS victory backed by strong statements by the ice cream makers.
And sure good feelings don’t do much and there was probably zero economic impact on the supplier to the settlements.
I reckon the greatest positive is the precedent it sets for a company making claims for ethical standards, which an increasing number are doing. Global capitalism is a hard beast to fight. Unilever is not a realistic target of BDS campaigning because the movement doesn’t have the strength yet to take it on. But give it a decade, as the young folk who are increasingly opposed to Israel’s policies, gain greater strength, even the likes of Unilever can be felled.
Till then, Ben & Jerry’s can give us strength.

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dava golino replied on

It is good to keep israel crimes in the news. Good on Ben & Jerry's as jewish folks to stand up and show support... Most that try the media hide their effects. So this is good... hope that more follow. Anything CALLED ATTENTION to israel War crimes, because no nation will do what should be done! Sanction the oppressors. No more funds until they stop.

Ali Abunimah

Co-founder of The Electronic Intifada and author of The Battle for Justice in Palestine, now out from Haymarket Books.

Also wrote One Country: A Bold-Proposal to End the Israeli-Palestinian Impasse. Opinions are mine alone.