Chobani today failed in its attempt to overturn an injunction imposed by bitter rival Fage that stops it using the term ‘Greek yogurt’ to market products in England and Wales.
A unanimous Court of Appeal decision against the circa. $1.5bn+ in sales yogurt powerhouse reiterates the fact the Greek yogurt must be made in Greece to be worthy of the name, since this is what UK consumers understand.
Last March High Court judge Mr Justice Briggs rejected Chobani’s claim that English and Welsh consumers took the term ‘Greek yogurt’ to define a specific manufacturing process; if they did believe it came from Greece, Chobani added, this factor did not really matter to them.
End of the road for Chobani
Justice Briggs disagreed and said at the time: “It seems to me clear that, if sufficient goodwill is shown to be attached to the phrase Greek yogurt among customers who believe it is made in Greece, and that this matters to them, then the use of Greek yogurt to describe yogurt not made in Greece plainly involves a material misrepresentation.”
Yesterday, three judges, Lord Justices Kitchen, Lewison and Longmore said they agreed with Briggs’ decision, although Chobani is now planning to appeal again to the UK Supreme Court.
Chobani argued before the CA that the High Court had no power to grant an injunction to protect geographical indications such as ‘Greek yogurt’ except in accordance with Regulation (EU) 1151/2002.
EU regulation does not apply
Since the regulation only applies to designations of (product) origin and geographical indications registered after it came into effect, and since ‘Greek yogurt’ is not registered under the law, Chobani argued that the court had no right to grant the injunction in this case.
But Chobani asserted that the court – following domestic law – should adopt and follow principles enshrined in the Regulation, namely the idea of what the brand claims the ‘average consumer’ understands by Greek Yogurt – i.e. it is thick and creamy, strained but not necessarily made in Greece.
But Lord Justice Lewison reiterated Justice Briggs argument that a “substantial proportion” of UK Greek yogurt buyers think it is made in Greece, and said the Regulation did not apply to ‘Greek yogurt’ as a term used solely on the UK market and not on an EU-wide basis.
The UK Court of Appeal decision – in a continuation of legal action first launched in autumn 2012 by Fage, whose yogurt is made in Greece – is available here .
Commenting on the decision, Chobani said: "Chobani is of course disappointed with this result but the fight is not over. Chobani is appealing to the Supreme Court, because we remain of the view that the population of the UK know and understand Greek Yoghurt to be a product description regardless of where it is made.
"We remain committed to the UK market and to breaking the monopoly on the use of the term Greek Yoghurt enjoyed by Fage.”