As Fage and Chobani slug it out in court over who has the right to use the term “Greek yoghurt”, lawyers are tipping Fage to emerge victorious from the case.
The Total Greek Yoghurt owner is suing US company Chobani in the High Court for labelling its US-made yoghurts as “Greek yoghurt” in the UK.
Fage was given an early boost in its case last week, after Chobani agreed to temporarily change its packaging and stop calling its yoghurts ‘Greek yoghurt’ from 1 December until a final decision in the case was made next year.
Chobani stressed this did not amount to Fage being granted an interim injunction, but lawyers said the move nevertheless suggested the judge was on Fage’s side at this stage.
“It seems to me the judge was minded to grant an injunction but was prepared to accept undertakings instead, which in practice is essentially the same,” said Akash Sachdeva, a partner with Edwards Wildman Palmer.
A second lawyer said he thought the judge had “got it right” and that the money was on Fage to win the case at trial. “You have an American product made by an American company sold under a Greek name - this, combined with my experience as an IP lawyer, tells me requiring a labelling change feels like the right sentiment.”
Chobani claimed that it was its decision to offer not to use the words “Greek” and “yoghurt” side by side until the case was decided, and that it would relabel its products as “Greek strained yoghurt” instead of the more common “Greek style yoghurt”.
It also stressed its desire to take the case to trial in February 2013, but Kate Széll, a partner at Venner Shipley, said it was very common for cases like this to settle.
The case brought by Fage against Chobani is one of “extended passing off”, and involves Fage arguing there is inherent goodwill in the term “Greek yoghurt” as distinct from “Greek style yoghurt” from which it - as a manufacturer who produces its yoghurts in Greece - is entitled to benefit.
Chobani, on the other hand, is arguing the term Greek yoghurt does not indicate a place of manufacture but rather a method of making yoghurt. A spokeswoman for the company told The Grocer last week: “Similar to French fries, Black Forest Gateaux, Yorkshire pudding and Cheddar cheese, which are understood to be products made following a particular recipe or method, Greek yoghurt refers to an authentic straining process.”
However, Széll said these comparisons were not necessarily relevant. “Each product is different and every case is different, so it may very well be the case that consumers understand Yorkshire pudding isn’t necessarily made in Yorkshire but that doesn’t automatically mean they will have the same understanding regarding Greek yoghurt.”
“The main question in the case is really about what the words ‘Greek yoghurt’ mean,” added Sachdeva. “This is quite a factual question, and I would expect Fage and Chobani to bring forward consumer survey evidence to support their case.”
Fage claims to have about 95% of the market for Greek - as opposed to Greek style - yoghurt in the UK. Sachdeva said the fact that other manufacturers described their yoghurt as “Greek style” if it was not made in Greece showed there was already a degree of self-regulation in the industry. “It indicates that among people who produce yoghurt the term Greek yoghurt means something quite specific,” he said.
As for the wider ramifications of the case, Széll suggested a win for Fage could prompt similar cases from other food companies. “It would give private companies greater confidence to take action when they would otherwise rely on criminal prosecutions through Trading Standards,” she said.
Sachdeva added the case could also encourage the Greek government to explore getting EU special protected food status for Greek yoghurt. At present, Greek yoghurt is not covered by EU food marks such as PDO, PGI or TSG.
Fage did not comment.