Ben & Jerry's Homemade, Inc. v. Conopco, Inc.

Background

Ben & Jerry’s Homemade, Inc. filed an action against Conopco, Inc. and sought a preliminary injunction and a temporary restraining order. It asked the court to prevent Conopco from entering into or completing transactions that would permit the licensing, sale, distribution, or use of Ben & Jerry’s products in the West Bank, and from performing acts under agreements that would permit those activities.

The court denied the temporary restraining order and ordered Conopco to show why a preliminary injunction should not issue. After unsuccessful mediation efforts, the court held a hearing on August 8, 2022.

Preliminary-Injunction Standard

The court described a preliminary injunction as an extraordinary remedy. Ben & Jerry’s had to show irreparable harm—harm that could not be adequately remedied later—and either a likelihood of success on the merits or sufficiently serious questions for litigation combined with a decisive balance of hardships in its favor. The court stated that irreparable harm must be actual and imminent, rather than remote or speculative.

Court’s Analysis

Ben & Jerry’s identified two related forms of alleged irreparable harm. First, it argued that new owners of Ben & Jerry’s products in Israel and the West Bank could introduce products with a social message contrary to Ben & Jerry’s position. Second, it argued that an injunction was needed to prevent customer confusion about who owned Ben & Jerry’s social mission.

The court rejected both theories as insufficient. It found the first theory speculative because it depended on several unproven events: new products being introduced, those products conveying a particular message, and the new owners marketing them to convey a contrary message. The court found the customer-confusion theory remote because Ben & Jerry’s offered no evidence of confusion or its effects. The court also noted that products sold in Israel and the West Bank would use new Hebrew- and Arabic-language Ben & Jerry’s trademarks rather than English trademarks, making them different from other Ben & Jerry’s products and reducing, if not eliminating, the possibility of reputational harm.

Disposition

Because Ben & Jerry’s failed to establish irreparable harm, the court did not consider its remaining arguments and denied its motion for a preliminary injunction. The parties were ordered to submit a joint status letter within two weeks of the order. The court also granted Conopco’s motion to seal and directed the Clerk of Court to terminate that motion at ECF No. 33.