Culture clash: Greek yoghurt fights to keep out Americans, for now

The trouble with extempore judgments is that, like autumn leaves dancing in the breeze, they leave few traces behind them.  Last week's decision of Mr Justice Briggs in Fage UK Ltd and another v Chobani UK Ltd and another, in the Chancery Division of the High Court for England and Wales is a good example. Were it not for the fact that some bright soul was there in court last Thursday to record it, at least in note form, for the very handy Lawtel subscription service, we might never have known of its existence.

In this action Fage held no less than 95 percent of the British market for Greek yoghurt, this being a product which has not yet been outsourced to the Chinese and which is still, in all its wickedly delicious opulence, made in Greece. But this comfortable market share was bound to attract competitors. Competition came in the form of Chobani, which began to market and sell its own Greek yoghurt.  This too was not made in China -- but it was, unfortunately for the Greek economy, made in the United States.  Chobani, having secured a foothold in the British market for Greek yoghurt with a one percent share, ambitiously planned to raise that to a full 10 per cent within 12 months by the cunning device of offering free samples of its product at British train terminals [this Kat had not appreciated that any synergy existed between British railway terminals and yoghurt, but a swift online search for "St Pancras" and "yoghurt" attracted nearly half a million search results].

Fage was indignant, alleged passing off and demanded interim injunctive relief. This was not Greek yoghurt at all, since Greek yoghurt hails from Greece.  It was no more than "Greek style yoghurt".  Real Greek yoghurt was thick and creamy in consequence of the straining process used in its production, and was free from additives. Said Fage, these attributes gave Greek yoghurt a different status to Greek style yoghurt and enabled it to charge a higher price due to the inherent goodwill in that appellation. Products labelled "Greek style yoghurt" did not however guarantee the same attributes. Chobani insisted that it used the same straining process for its own product, adding that the statement on its pots that its product was made in the United States negated any misrepresentation.

Mr Justice Briggs is not a member of that close-knit family of specialist intellectual property judges who collectively constitute the Patents Court for England and Wales, but he does occasionally hear IP matters. By sheer coincidence, he presided over an action in 2006 between Sky and Reynolds, who were both parties to the case on which the IPKat posted this note last night.  Briggs J has also had some experience of applications for interim injunctive relief, since he presided over Riemann v Lino Care (P20 v C20 sunblocks), where he granted the relief sought where both parties faced the prospect of irreparable harm but one party's irreparable harm was greater than the other.  But what view did he take with regard to a substance that was even thicker and creamier than sunblock?

Down at the docks, the Kustoms
Kats prepare to repel alien
yoghurt cultures ...

According to Briggs J, the evidence showed that Fage had a real prospect of establishing that there was inherent goodwill, independent of the maker's name, in products labelled "Greek yoghurt" over those labelled "Greek style yoghurt" on account of the specific attributes of the products originating from Greece, these being the creamy thickness derived from the straining process and the absence of additives. There was thus a real prospect of Fage succeeding in its claim for extended passing off [a topic on which this Kat recommends a good read of Diageo v Intercontinental Brands, the Vodka/Vodkat case]. He added that passing off could be established even where the mode of processing the product was the same, citing the woeful and inexplicable case of Chocosuisse Union des Fabricants Suisses de Chocolat v Cadbury Ltd [1999] E.T.M.R. 1020 [in which the Court of Appeal upheld one of the worst decisions ever to emanate from the much-loved pen of Sir Hugh Laddie, presumably on the ground that it must have been right if he said so ...].

Weighing up the positions of both parties, Briggs J then assessed that the risks of injustice were greater for Fage if no interim injunction were granted than for Chobani if it were, and that it would be easier to calculate the damage suffered by Chobani if Fage failed at trial.  In any event, any injustice could be mitigated by delaying the injunction for long enough to give Chobani time to relabel its products without disruption to sales and to ensure products were then advertised and promoted within the terms of the injunction.

What about Chobani's offer to amend its current packaging merely by including the words "made in the USA" where the product was also labelled "Greek yoghurt"? No, said the judge, this simply would not do.  If Fage succeeded in establishing that a specific attribute of "Greek Yoghurt" was that products so labelled were made in Greece, that amendment would not have met the essence of Fage's case and would continue to inflict loss till trial.

Taking everything into account, the judge considered it was appropriate to grant the injunction but to suspend it for five weeks, which would be long enough for Chobani to relabel, re-advertise and resupply its product.  In the event he didn't need to do so, since Chobani was prepared to give undertakings of equivalent effect: its "Greek strained yoghurt" product is expected on British shelves by 1 December, according to Ekathimerini.com.

The IPKat can't help wondering about the ecological impact of importing yoghurt -- a relatively heavy, low-cost product that must be kept refrigerated and generally looked after -- across the Atlantic for consumption in Europe.  He keeps hearing people talk of the environmental impact of flying cut flowers to Europe from Ecuador or beans and berries from various parts of Africa. Do the objections only arise when the country of origin is in the developing world?

Merpel, having marvelled at the extraordinary and successful efforts made by the Greeks to persuade the European Commission and ultimately the Court of Justice that Feta cheese was a Greek product rather than a generic term for cheese mainly made in Denmark and Germany, fully expects the Greek government to press for geographical indication protection for the term "Greek Yoghurt" rather than leave it to private litigants to preserve the sanctity of the term.

Greek v regular yoghurt: which is the more healthful?
Greek yoghurt fetish here
Yoghurt culture here