Fage UK Ltd v Chobani UK Ltd, High Court
The High Court has found that a passing off claim did not need to show that the public as a whole believed that the trading name “Greek Yoghurt” was suggestive of a distinctive class of product, but instead that only a section of the public had that belief.
Fage brought a passing-off claim against Chobani for describing its yoghurt as “Greek yoghurt” when it was made in the US and not Greece. Fage argued that only yoghurt which originated from Greece should be labelled as “Greek yoghurt” and failure to do so was a damaging misrepresentation. Chobani counter-argued that the description “Greek yoghurt” was not a clearly distinctive class in the minds of the public and therefore there was no view that “Greek yoghurt” had to be made in Greece.
The High Court found that Fage had clearly demonstrated through the use of statistics and market research that it mattered to a substantial proportion of Greek yoghurt buyers in the UK that Greek yoghurt was made in Greece. Even though this proportion was only small when taken in the view of yoghurt eaters as a whole, the Court found this was still evidence that there was goodwill in the phrase “Greek yoghurt”. As such, to use the phrase “Greek yoghurt” to describe yoghurt not made in Greece could be a material misrepresentation which could cause damage to the distinctiveness of the product.
The Court added that, even in cases such as this – which involved “extended passing off” – the name only needed to have an allure to the customers involved, even if they did not know why it did so. Extended passing off is where there is a collection of traders sharing goodwill in a class of product – such as “Champagne” or “Swiss chocolate”. For there to be extended passing off, there needed to be a clearly defined class of goods, with a particular name attached to it and goodwill attached to that name, and the claimant had to be a member of that class and owned substantial goodwill. That was the case here for Fage and Greek yoghurt.
The Court therefore granted Fage a permanent injunction restraining Chobani from passing off its US-made yoghurt in the UK under the label of “Greek yoghurt”.