Passing off: what is meant by ‘Greek yoghurt’?

In Fage UK v Chobani UK Ltd, the claimant, FAGE, was a Greek manufacturer of yoghurt and its UK distributor. FAGE had sold its product in the UK for a number of years and enjoyed a 95 per cent market share. The defendant, Chobani, was a US yoghurt manufacturer and its UK distributor. Both products were described as ‘thick and creamy’ (when compared with ordinary yoghurt). The FAGE yoghurt was produced — in Greece — by a straining process. Historically, the thick and creamy yoghurt not produced in Greece had been marketed in the UK as ‘Greek-style yoghurt’ and this yoghurt was produced by the use of thickening agents rather than by straining.

Chobani began selling its yoghurt in the UK in 2012 using the ‘Greek yoghurt’ label. FAGE obtained an interim injunction on the basis that the label Greek yoghurt could only be used in respect of yoghurt produced in Greece by a process of straining, and that to use the phrase, as Chobani was doing, in respect of yoghurt not produced in this way was a misrepresentation. At trial, Briggs J held that Chobani’s use of the term ‘Greek yoghurt’ amounted to extended passing off.

‘Extended passing off’ is a form of passing off where the action is brought by or on behalf of a class of traders sharing the (collective) goodwill of a mark…

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