Chobani yesterday lost its appeal against Fage in the ‘Greek yoghurt’ wars. Greek yoghurt indeed has to come from Greece, the Court of Appeal found.
The US yoghurt maker has vowed to fight on, taking its case directly to the Supreme Court (it was refused permission to go to the Supreme Court via the Court of Appeal). But in the meantime, what does yesterday’s decision mean for the wider food industry and producers’ ability to protect their food names?
Here, two intellectual property lawyers give their views.
Despite Chobani’s insistence it intends to fight on, Kate Széll, a partner at Venner Shipley, says the judgment is “very robust” and likely to mark “the end of the line for Chobani’s fight”.
“The Court of Appeal upheld the earlier decision that ‘Greek Yoghurt’ means, to a substantial proportion of Greek yoghurt buyers, a particular type of yoghurt that, importantly, comes from Greece. As Chobani’s yoghurt was made in the US, it was passing off to call it ‘Greek’,” she says.
Sahira Khwaja, a partner at Hogan Lovells, says the Court of Appeal’s judgment sent a clear message that “where a substantial part of the relevant public recognises a product as having desirable characteristics and coming from a particular place, the law will protect the producers of those products.
“The result will no doubt be welcomed by producers whose goods rely on a distinctive badge of origin”
Sahira Khwaja
“Even where a term is used which may ordinarily describe the product’s origin (such as ‘Greek’, ‘Swiss’ or ‘Champagne’), that description can take on an important distinctive role in the minds of the purchasing public and subsequently become worthy of protection.”
As for Chobani’s attempt to introduce new lines of argument into the appeal, Széll says: “One was a bit of a minor quibble, but the other could have had an impact. It was that the court did not have the right to make any decisions preventing use of geographic terms unless based on the laws on PGIs and PDOs [protected geographical indication and protected designation of origin].
“That argument was thrown out, but could have held sway if the court had seen ‘Greek yoghurt’ as registerable as a PGI or PDO. Anyone wanting to bring a passing off action in the future relating to use of a geographic term should look at the laws on PGIs and PDOs to see if they could be relied on. If they could be but are not, the whole case could fail.”
Meanwhile, Khwaja says: “In an attempt to overcome the injunction granted against it back in March 2013, Chobani argued that the court had no power to grant such an injunction unless it followed the provisions of a 2012 European Regulation.
“This regulation reflects the need for a uniform system throughout Europe in which consumers are provided with clear information about products and any special characteristics associated with claims to geographical origin (so called protected designations of origin, or ‘PDOs’, and protected geographical indications, or ‘PGIs’).
“These PDOs and PGIs only arise if they meet certain requirements under the regulation, such as having to be used in trade or in the common language of the geographical area in question. In Chobani’s case, the Court of Appeal found that the term ‘Greek yoghurt’ did not meet these requirements, partly because producers in Greece do not refer to the product as ‘Greek yoghurt’ but instead as ‘strained yoghurt’.
“The result will no doubt be welcomed by producers whose goods rely on a distinctive badge of origin. Those producers should however bear in mind that protection will only be given where purchasers consider that badge to denote something desirable or attractive about the product in question.”
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