The Origin of Goods – It’s All Greek To Me … Not Anymore!

A recent Court of Appeal judgment has clarified the law on labelling and naming goods where to do so would suggest or indicate where the goods originate from.

The decision of the Court of Appeal in FAGE v Chobani confirmed that a yoghurt which was labelled as ‘Greek yoghurt’ should be made in Greece.  A dispute arose in this case as FAGE, which has been producing Greek yoghurt for 90 years and importing it into the UK for 30, sought to prevent Chobani from selling its own Greek yoghurt product.  The issue that FAGE had was due to the fact that Chobani’s yoghurt was in fact produced in the USA and not Greece and could not therefore be ‘Greek yoghurt’.

FAGE brought a claim for ‘extended’ passing off on the basis that the phrase ‘Greek yoghurt’ was a phrase which defined origin.  Chobani on the other hand, argued that ‘Greek yoghurt’ was in actual fact a general term used to describe a particular type of product therefore including its yoghurt made in the USA; Greek yoghurt was in fact the term used to describe a thick and creamy yoghurt produced by straining.

Not so, upheld the Court of Appeal, which dismissed Chobani’s appeal concluding that there had been ‘extended’ passing off.  Passing off is a claim by Party A that Party B has misrepresented its goods as the goods of Party A, causing confusion to the purchaser as to the origin of those goods.  Extended passing off however, prevents a party from misrepresenting that its goods belong to a particular class of goods with a certain reputation such that this would cause damage to the established traders in that class.

As a second line of argument Chobani claimed that the Court of Appeal had no jurisdiction to make this decision as it was contrary to the European Regulation protecting ‘designation of origins’ for food stuffs.  As ‘Greek yoghurt’ had not been registered under the Regulation and the Court of Appeal held that it was not prevented from making this decision and that EU Member States were not precluded from applying their own national laws in these circumstances.

This case highlights the awareness that businesses and individuals alike must have of intellectual property to ensure that they do not infringe the intellectual property of others.  For assistance with all aspects of intellectual property including its creation and protection, contact the Forbes Business Law team or telephone 01254 222399.

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