Supreme Court calls time on Greek yoghurt food fight

The Supreme Court has sided with the makers of Total yoghurt, Fage, in refusing US rival Chobani permission to appeal the definition of Greek yoghurt.

Lord Neuberger, Lord Clarke and Lord Reed called an end to the IP food fight this month, finding there was no arguable point of law to the appeal.

The decision finalises the Court of Appeal’s ruling that Greek yoghurt was only legally Greek if made in Greece by a straining method to remove all the “watery whey” (3 April 2013).

The Supreme Court ordered Pillsbury client Chobani to pay the respondents’ costs and left in place Winston & Strawn client Fage’s injunction against its rival.

Winston & Strawn partner Richard Price instructed Daniel Alexander QC of 8 New Square and Brick Court Chambers’ Mark Hoskins QC in the Court of Appeal. They argued that Chobani’s product did not count as Greek yoghurt as it was produced in America (28 January 2014).

Chobani was represented by One Essex Court’s Geoffrey Hobbs QC and 8 New Square silk John Baldwin QC, instructed by Pillsbury partner Paul Harris. Harris brought the case with him from Canadian firm Gowlings when he joined Pillsbury last year (30 August 2013).

The fight was sparked two years ago when Chobani launched a rival product to Fage’s Total Greek yoghurt in the UK. At that point Fage’s yoghurt counted for more than 95 per cent by value of all yoghurt sold in the UK as Greek.

Fage argued in a 2013 High Court hearing that Chobani’s yoghurt should not be allowed to compete on supermarket shelves and command the higher price awarded to Greek yoghurt as it was made in the US.

In his judgment, Mr Justice Briggs 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.

In January this year the CoA upheld the decision of the High Court, granting the permanent injunction against Chobani and ordering the respondent to pay Fage’s appeal costs. This included a £350,000 down payment to be paid on account to the court shortly.

A spokesperson for Chobani said: “While the UK is not currently a market of strategic focus for us, and we have not exported products there since 2013, we are disappointed that the UK Supreme Court refused to prevent the monopoly on the use of the term Greek yoghurt. We will continue to advocate our view that the population of the UK knows and understands Greek yoghurt to be a product description in terms of how it’s made not where it is made, similar to things like French fries and English muffins in the US.”

Now the Supreme Court has ended the food fight for good.

The legal line-up:

For the appellant, Chobani

One Essex Court’s Geoffrey Hobbs QC and 8 New Square silk John Baldwin QC, instructed by Pillsbury partner Paul Harris

For the respondent, Fage

8 New Square’s Daniel Alexander QC and Brick Court Chambers’ Mark Hoskins QC, instructed by Winston & Strawn partner Richard Price