A federal judge in New York on Monday denied a request by Ben & Jerry’s to stop its parent company from licensing, selling, distributing or using the ice cream maker’s products in the West Bank.
The company’s independent board of directors last month sued Unilever over the sale of its Israel business to American Quality Products, a regional distributor, which planned to sell the ice cream in Israel and the West Bank using only Hebrew and Arabic names.
Ben & Jerry’s has operated in Israel since 1987. For years, the company faced backlash for operating in the West Bank, and last year announced it would no longer do business in the region. The move sparked criticism from the Israeli government, and American Quality Products sued for breach of contract.
Attorneys for Ben & Jerry’s had asked Judge Andrew Carter of the Southern District of New York, in Manhattan, to issue a preliminary injunction stopping Unilever from moving ahead with any business deals in the West Bank while he hears the lawsuit filed by Ben & Jerry’s.
Carter found that Ben & Jerry’s failed to show that it would suffer irreparable harm if Unilever allowed American Quality Products to continue selling the company’s products while the trial proceeds.
Ben & Jerry’s attorneys argued in an Aug. 8 hearing that if the judge did not issue an injunction, the new distributor would be able to market Ben & Jerry’s products with the opposite stance of the ice cream maker, which opposes Israeli occupation of the West Bank. Ben & Jerry’s also argued that any marketing of its products would confuse customers about what the social stance of the company is.
The judge did not buy either argument.
“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,” Carter said in a written ruling.
Carter called the harm of customer confusion remote.
“If anything, media reports and this very lawsuit evince Ben & Jerry’s position on the issue,” Carter said. “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. 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.”
Neither attorneys for Ben & Jerry’s nor Unilever responded to emails requesting interviews.
Ben & Jerry’s spokesperson Sean Greenwood said he had no new position for the ice cream maker to share at this time.
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