Greek Yogurt Passing Off Case

Court of Appeal upholds Greek Yogurt Passing Off case

On appeal from the High Court of Justice Chancery Division, Intellectual Property

The Greek Yogurt Passing-Off Case

The Hon Mr Justice Briggs [2013] EWHC 630 (Ch)

Before: Lord Justice Lonmore, Lord Justice Lewison and Lord Justice Kitchin

Between:

Claimants/Respondents

(1) FAGE UK Limited

(2) FAGE Dairy Industry S.A.

and

Defendants/Appellants

(1) Chobani UK Limited

(2) Chobani Inc

Judgment Date: 28 January 2014

Mr Daniel Alexander QC and Mr Joe Delaney for the Claimants

Mr John Baldwin QC and Mr James Turnbridge for the Defendants

 Facts

This case was an extended passing-off action regarding sales of thick and creamy yoghurt in UK supermarkets. The main issue was whether the phrase “Greek Yoghurt” had, when used in the UK supermarket, come to have attached to it sufficient reputation and goodwill as denoting a distinctive type of yoghurt made in Greece, so that the use of the same phrase to describe yoghurt not made in Greece, but otherwise similar, would involve a damaging misrepresentation sufficient to support a claim in passing-off. The Claimants were the UK distributor and Greek Manufacturer of yoghurt sold under the name of Total, using the phrase Greek Yoghurt on their labelling. They had been doing so continuously since the mid-1980s and had in 2012 the market share of 95% by value of all yoghurt sold in the UK as Greek Yoghurt. The Defendants had sold the yoghurt as Greek Yoghurt in the USA and then entered the UK market with American-produced “Greek Yoghurt”.

The Claimants argued that buyers of such yoghurt products believed that Greek Yoghurt was from Greece and was thickened using a special straining method rather than using thickening agents which most other yoghurt manufacturers sold in the UK employ. Further, it mattered to buyers of Greek Yoghurt that it was made in Greece. The Defendants argued that the description of Greek Yoghurt did not identify any clear or distinctive class in the minds of the yoghurt-buying public.  Greek Yoghurt is defined as a mode of manufacturing which is straining, not a reference to it being produced in Greece. Even if most members of the yoghurt-buying public did believe that Greek yoghurt was produced in Greece, this did not amount to any special cache for them. There was nothing that gave rise to reputation or goodwill of the type protected by passing-off. Separately the Defendants counterclaimed for malicious falsehood arising from complaints which the Claimants had previously made to a trading standards regulator.

Mr Justice Briggs found for the Claimants and dismissed the counterclaim.

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