High Court smoothes out Greek yoghurt food fight

When is Greek yoghurt legally Greek yoghurt? That was the question put to Mr Justice Briggs in a major IP battle between the makers of Total Greek Yoghurt, Fage UK, and New York-based Chobani.

Winston & Strawn partner Richard Price instructed Daniel Alexander QC of 8 New Square to argue that yoghurt could only be accurately described as being Greek if it had been made in Greece by a straining method, rendering the yoghurt thick and creamy with no artificial additives added.

Alexander’s setmate John Baldwin QC was instructed to defend the claim for the New York-based company, which made its products in the States but advertised it as being ‘Greek’. Gowlings partner Paul Harris led the instructing team.

Until 2012 Fage’s Total Greek Yoghurt accounted for more than 95 per cent by value of all yoghurt sold in the UK as Greek yoghurt.

In September 2012 Chobani launched its product in the UK, sparking protest from Fage, which was granted an injunction against its rival in December.

According to the claimant only yoghurt that had been made in the European country could accurately be defined as Greek yoghurt. According to the judgment: “Fage’s case was that Greek yoghurt commanded a higher price than Greek-style yoghurt in the UK retail market, and that its own Total brand was the price leader in the thick and creamy yoghurt market consisting of Greek and Greek-style yoghurt.”

In his judgment, handed down last week (28 March 2012), Briggs J accepted Fage’s extended passing-off claim against its rival and granted it a permanent injunction against Chobani. He also refused Chobani a counterclaim for alleged trade libel.

The judge stated that “the very small print used on the rear of Chobani’s pots to indicate its American place of manufacture is nowhere near sufficient to disabuse that substantial part of the Greek yoghurt buying public likely to think that its description on the front and top of the pot as Greek yoghurt means that it comes from Greece”.

What is Greek yoghurt? The judge went only so far to say that its thick and creamy texture appears predominantly to have been attributable to the methods of straining – and with no additives.

“Whereas most Greek yoghurt is sold in plain or twin-pot form, Greek-style yoghurt is sold in a broad range of varieties in terms of the inclusion of different types of sweetening or flavouring,”the judgment stated. “The only defining features of Greek-style yoghurt sold in the UK which can be identified are that it is thick and creamy and not made in Greece.”

TOTAL Greek Yoghurt, the judge added, had always been made in Greece, in accordance with a straining method resulting in a thick and creamy product,  and with no additives.

On the other hand, he continued, the many Greek Style yoghurts sold in the UK are not made in Greece by a straining method and have thickeners – and sometimes other ingredients – added to them .

The legal line up:

For the claimants (1) Fage UK; (2) Fage Dairy Industry: 8 New Square’s Daniel Alexander QC leading Three New Square’s Joe Delaney instructed by Winston & Strawn partner Richard Price.

For the defendants (1) Chobani UK Ltd; (2) Chobani Inc: 8 New Square’s John Baldwin QC leading Gowlings counsel James Tumbridge instructed by Gowlings partner Paul Harris.