The world renowned manufacturer of Greek Yoghurt, FAGE, has recently won an ‘extended passing-off’ case against Chobani UK Limited and Chobani, Inc in the United Kingdom. Interestingly, an extended passing-off claim, unlike a classic passing-off claim, may be brought by one or more members of a class of traders which share the collective goodwill in a mark.
In the present case, FAGE, which had a 95% market share for all yoghurt labelled as ‘Greek yoghurt’ sold in the UK, claimed that ‘Greek yoghurt’ constituted a goodwill phrase which applied exclusively to yoghurt which (i) was manufactured in Greece; (ii) was made using the Greek method of straining cow’s milk to reduce the whey; (iii) contained no additives.
FAGE moreover claimed that it owned a share of such goodwill and that Chobani, which had recently introduced its US-manufactured yoghurt into the UK market labelled as ‘Greek yoghurt’, was misrepresenting its goods.
The UK Court of Appeal held that the fundamental principles of ‘distinctiveness and deception’ applicable to classic passing-off are equally applicable to extended passing-off.
The Court found that there existed a clearly identifiable class of traders in the UK which sold yoghurt made in Greece using the traditional Greek method described above, which they marketed as ‘Greek yoghurt’. This class of traders had conferred on the phrase ‘Greek Yoghurt’ a distinctive denomination, and all traders in the UK complied with this denomination.
On the basis of the above, the Court concluded that Chobani was wrongfully passing-off its product as ‘Greek yoghurt’, impinging on the goodwill held in this mark by the aforementioned class of traders. It thus rejected Chobani’s appeal and ruled in favour of FAGE.