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In Fage v Chobani, the High Court accepted claims of "extended" passing off in connection to use of the phrase "Greek yogurt" (we considered this decision in our August 2013 IP & Technology newsletter .The Court of Appeal has now dismissed Chobani's appeal against the decision of the High Court. In doing so, it ruled against Chobani's argument that its US-produced yogurt could be sold as "Greek yogurt". Providing a comprehensive review of the law of "extended" passing off, the Court agreed with Fage, the producers of "Total Greek yogurt", that the majority of consumers believed that "Greek yogurt" came from Greece - which suggested the product was special.

In its appeal, Chobani raised an ingenious argument based upon the EU Regulations1 on quality schemes for agricultural products and foodstuffs. These regulations, inter alia, also provide a regime for the protection of geographical indications and denominations of origin for food. Chobani argued that the court should not provide passing off protection for what is in effect a geographical indication or a denomination of origin where there is already a regime giving protection to such indications.

But the Court of Appeal, who undertook a thorough review of the Regulations that is likely to be useful for future litigants, found that the legislation did not apply to "Greek yogurt" as in order to do so there would need to be a link between the characteristics of the product and its geographical origin. Neither did the Regulations prevent systems of national protection for geographical denominations that fell outside their scope. In particular, it found that:

  • "Greek yoghurt" could not be a geographical indication or designation of origin under the Regulations because the yoghurt was not known as "Greek Yoghurt" in Greece; and
  • the Regulations do not prohibit member states from operating national systems designed to protect consumers from misleading advertising.

Interesting fact: Greek Yoghurt is so successful a product that there are not enough cows in Greece to produce the milk necessary to make the yoghurt.

Please click on the links below for the other articles in the March 2014 Technology & IP newsletter

Notes:

(1) Council Regulation (EU) 1151/2012 on quality schemes for agricultural products and foodstuffs.

The information provided is not intended to be a comprehensive review of all developments in the law and practice, or to cover all aspects of those referred to. Readers should take legal advice before applying it to specific issues or transactions.

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