In the context of a passing off claim, the High Court has ruled that yoghurt labelled as ‘Greek Yoghurt’ in the UK market must be made in Greece. Issuing a permanent injunction to restrain the sale of American-made yoghurt as ‘Greek Yoghurt’, the court accepted that a significant proportion of the population viewed the label as an indication of geographic origin.
Fage UK Limited’s ‘Total’ brand has been the market leader in the UK since the 1980s and amounts to more than 95% of all domestic Greek yoghurt sales. The company objected after Chobani UK Limited began marketing American-made yoghurt as ‘Greek Yoghurt’ in Britain.
Upholding Fage’s claim, the court noted the uniform adoption over 25 years by suppliers to the UK market of a labelling convention which limits the description ‘Greek Yoghurt’ only to yoghurt made in Greece. Other ‘thick and creamy’ yoghurts of a similar type, but made outside Greece, were conventionally labelled ‘Greek-Style Yoghurt’ and sold at lower prices.
On the basis of extensive market surveys, Fage had succeeded in establishing that substantial goodwill had become attached to the use of the phrase ‘Greek Yoghurt’. A substantial proportion, and probably a clear majority, of consumers would take the view that there was ‘something special’ about Greek yoghurt and that products labelled as such would have been made in Greece.
Ruling that the use of the phrase ‘Greek Yoghurt’ to describe a product not made in Greece amounted to a ‘material misrepresentation’, the court observed that it was nothing to the point that Chobani’s yoghurt is made by the same straining method as that commonly used in the production of Greek yoghurt.
The court concluded: “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 a 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.
“Once a Greek yoghurt consumer discovers that a yoghurt sold as Greek yoghurt can in face be made in the USA, then no one reading the phrase ‘Greek Yoghurt’ on yoghurt pots in the future would be able to assume, without a degree of checking the small print most unlikely to take place in a busy supermarket, that it can safely be relied upon as having been made in Greece”.