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Fage UK Ltd -v- Chobani UK Ltd [2013] EWHC 630 (Ch)

Case Summary  |  Judgment  |  26 March 2013

 

Daniel Alexander QC and John Baldwin QC recently appeared before Mr Justice Briggs in Fage UK Ltd v Chobani UK Ltd [2013] EWHC 630 (Ch), representing the Claimants and the Defendants, respectively.

This case was an extended passing-off action concerning sales of thick and creamy yoghurt under the phrase “Greek yoghurt” in UK supermarkets. The Claimants were the UK distributor and Greek manufacturer of yoghurt sold under the brand “Total”, which enjoyed a 95% share of the Greek yoghurt market. The Defendants had sold yoghurt as “Greek yoghurt” in the USA, then entered the UK market with their American-produced “Greek yoghurt”.

The principal issue was goodwill. The Claimants argued that buyers of such yoghurt products normally believed that Greek yoghurt came from Greece and was thickened using the distinctive straining method. The Defendants argued that there was no relevant goodwill or reputation, since the geographical origin of Greek yoghurt (a) was not clearly identified by the public with Greece, (b) was not significant to the public, and (c) was not a specific type of goodwill capable of being 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. The relevant public was consumers of Greek yoghurt. On the facts, a substantial proportion of those consumers believed that the yoghurt was made in Greece and this mattered to them. Accordingly, goodwill, misrepresentation and damage were established and the Court granted a permanent injunction. The counterclaim failed because the relevant statements were either not false, not malicious, or neither.