Fage UK Ltd & Anor v Chobani UK Ltd & Anor [2013] EWHC 630 (Ch)

[2013] EWHC 630 (Ch)Case No HC12C03788
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 26/03/2013
Before
MR JUSTICE BRIGGS
Between
(1) FAGE UK LIMITEDClaimants(2) FAGE DAIRY INDUSTRY S.A.Claimant(1) CHOBANI UK LIMITEDDefendants(2) CHOBANI INCDefendant
Mr Daniel Alexander QC and Mr Joe Delaney (instructed by Winston & Strawn) for ClaimantsMr John Baldwin QC and Mr James Tumbridge (instructed by Gowlings (UK) LLP) for DefendantsHearing Hearing dates: 19, 20, 21, 22, 25, 26, 27 February 2013
Judgment

Introduction

[1]This is an extended passing-off case about yoghurt. The main issue is whether, by the beginning of September 2012, the phrase “Greek yoghurt” had, when used in the UK marketplace, come to have attached to it a sufficient reputation and goodwill as denoting a distinctive type of yoghurt made in Greece, so that the use of the same phrase to describe yoghurt not made in Greece, however otherwise similar, would involve a damaging misrepresentation sufficient to support a claim in passing-off.[2]The claimants FAGE UK Limited and FAGE Dairy Industry S.A. are respectively the UK distributor and Greek manufacturer of yoghurt sold in the UK under the claimants’ brand name Total, using the phrase Greek yoghurt on their labelling as part of their description of their product. By September 2012 they had been doing so continuously since the mid 1980s and were for most of that period the dominant suppliers of yoghurt described as Greek yoghurt to the UK market. Sales of the claimants’ yoghurt amounted in 2012 to more than 95% by value of all yoghurt sold in the UK as Greek yoghurt.[3]The second defendant Chobani Inc. (known until January 2012 as Agro-Farma Inc) was established in 2005 in the USA by a Turkish owner and quickly gained a substantial market share in the manufacture in the USA of yoghurt sold there as Greek yoghurt. In 2012 the second defendant decided to bring the same product, manufactured in the USA, to the UK market and for that purpose formed or acquired the first defendant Chobani UK Limited as its UK distributor. It commenced selling and promoting its yoghurt as Greek yoghurt in the UK in September 2012, until restrained from doing so by an interim injunction which I granted on the claimants’ application at the beginning of November, shortly thereafter replaced by undertakings to the court, which took effect on 1 December 2012 after a short period designed to enable the defendants to adjust their labelling. At the same time, and by consent, I directed a speedy trial of all issues other than quantum. I shall refer to the claimants and the defendants respectively as FAGE and Chobani, since no issue arises from their having used wholly owned subsidiaries for the purposes of distributing their products to retailers in the UK.[4]It is common ground that both FAGE’s and Chobani’s yoghurt is of the general type which may loosely be described as “thick and creamy”, by comparison with other yoghurt, to which I will refer without intending to be pejorative as ordinary yoghurt.[5]At its simplest, yoghurt is a form of fermented milk, usually (now) from cows. It may be sold on its own, usually called “plain”, mixed or layered with fruit, honey, nuts or other products, or in twin-pots where the yoghurt and the flavouring are kept separate. Thick and creamy yoghurt is derived from ordinary yoghurt by two main processes. The first, generally called straining, involves the separation and removal of the watery whey. The second involves the use of thickening agents, such as concentrated or dried milk products. Traditionally, straining was achieved by the use of cloth bags through which the fluid but not the solid elements in the fermented milk were able to pass. More modern industrial processes include ultra-filtration and separation by centrifuge. They are perhaps less appropriately described as straining than is the cloth bag method. Nonetheless, like Chobani’s expert Mr Michael Hickey, I shall refer to all yoghurt made thick and creamy by the extraction of fluid as strained.[6]Virtually all the yoghurt sold to the public in the UK (and all the examples shown to me by samples or as portrayed in documents) is packaged in plastic pots. It is not seriously in dispute that, with one modest exception, all yoghurt sold to the public in the UK during the 25 years or so before September 2012 with descriptions including “Greek yoghurt” in the labels on the pots was strained yoghurt made in Greece. As I shall describe in due course, this appears to have come about by way of an unwritten industry-wide labelling convention. It is not suggested that this is anything other than a UK convention. FAGE sells its yoghurt in Greece under labels which (when translated) do not describe it as Greek yoghurt. Both FAGE and Chobani sell as Greek yoghurt in the USA product which they make in the USA, rather than in Greece.[7]Much larger quantities of thick and creamy yoghurt are sold in the UK as “Greek style yoghurt”. None of it originates from Greece, and its thick and creamy texture is usually achieved by the use of thickening agents rather than by straining.[8]The central factual issue between the parties is whether the labelling convention which I have described, pursuant to which thick and creamy yoghurt was labelled Greek yoghurt only if it both came from Greece and was thickened by straining, was reflected in any similar consistent understanding on the part of the yoghurt eating public, or of a sufficient proportion of it. FAGE’s case was that buyers of thick and creamy yoghurt generally believed that Greek yoghurt came from Greece and that (without necessarily being aware of the method) it was made in a way which gave it a distinctive thick and creamy texture. Further, FAGE claimed that it mattered to buyers of Greek yoghurt that it was made in Greece. By contrast Chobani’s primary case was that the description Greek yoghurt denoted no clearly identified distinctive class in the minds of the yoghurt buying public. Alternatively they submitted that, consistent with their marketing objectives in the USA, Greek yoghurt defined a type of yoghurt by reference to its mode of manufacture (i.e. straining) but not by reference to its place of origin. In the further alternative, Chobani’s case was that, even if a significant proportion of the yoghurt buying public in the UK believed that Greek yoghurt came from Greece, this was not a matter of any significance to them, and denoted no specific cachet or other feature capable of giving rise to reputation or goodwill of the type protected by the law of passing-off.[9]During a seven day trial (exclusive of judicial pre-reading time) the parties deployed very substantial forensic effort and ingenuity in seeking to persuade the court to their rival views about the meaning and significance (if any) of the labelling of thick and creamy yoghurt in the UK as Greek yoghurt, in the minds of the yoghurt eating public. By contrast the parties were largely ad idem as to the applicable law, established as it has been by a series of decisions, beginning with cases about Champagne and ending with one about Vodka. The legal point in issue concerns the identification of the requisite section and proportion of the public which, as consumers of the product in question, must be shown to have a common understanding of the meaning or reputation alleged to be attributable to the phrase or other get up sought to be protected, for the purpose of establishing the existence of proprietary goodwill warranting protection from damage caused or threatened by misrepresentation.[10]Before leaving this introduction I must briefly mention Chobani’s counterclaim. On 14 September 2012, shortly after Chobani’s launch of its product in the UK market, solicitors instructed by FAGE wrote to the Trading Standards Team of the London Borough of Camden asserting breaches by Chobani of applicable EU regulations. The letter included the allegedly false statements that Chobani’s product was not marked with a requisite identification of its place of manufacture, and that Chobani had failed to make clear that it could not confirm that its yoghurt was free from artificially introduced bovine growth hormone. These falsehoods were alleged to have been stated recklessly and therefore maliciously, and in a manner calculated to cause Chobani pecuniary damage, in particular because FAGE’s letter requested Camden Trading Standards to order the removal of Chobani’s product from retail sale pending investigation of FAGE’s allegations.[11]FAGE’s defence to this counterclaim may be summarised as follows: i) The untruth of the statement that there was no sufficient indication of place of manufacture is admitted, but the statement was said to have been the result of an honest and reasonable mistake, since corrected. ii) The statement about bovine growth hormone is alleged to have been true. iii) Malice and pecuniary damage or other loss is denied, in relation to both statements.

The Evidence

[12]The court was provided with a wealth of samples, both of yoghurt pots and photographs of pots showing how Greek and Greek style yoghurt is labelled in the UK. Pictorial evidence also showed how yoghurt is presented for sale, both physically on supermarket shelves and electronically, in on-line catalogues. That material provided a reasonable picture of the way in which, by September 2012, both types of yoghurt were presented to the public for sale, although there were no reliable statistics about the prevalence (if any) of any particular mode of presentation.[13]The parties’ disclosure provided a wealth of marketing research and advice. None of it even purported to constitute scientifically conducted or reliable surveys of market opinion from which safe conclusions could be drawn as to the public understanding of the meaning, provenance or reputation of Greek yoghurt. Much of that material was prepared for specific but not always well-defined purposes and, taken as a whole, it did not present a consistent picture of market opinion about Greek yoghurt. The very inconsistencies were understandably relied upon by Chobani as pointing away from any conclusion that Greek yoghurt had acquired a sufficiently definite identity as a class of product with goodwill attaching to that phrase.[14]Subject to one very large difficulty, a market survey conducted for Chobani for the purposes of these proceedings promised to be a more reliable guide, not least because it was conducted and then admitted into evidence pursuant to court approval, following the guidelines laid down by the Court of Appeal in Marks & Spencer plc v Interflora Inc. & anr [2012] EWCA Civ 1051, although a final decision as to the weight of the survey results was left entirely to the trial judge, pursuant to the order made by Hildyard J, admitting the survey evidence, made on 29 January 2013.[15]The survey process consisted of a number of interviewers at selected sites around the country handing a FAGE Greek yoghurt pot (with its legend “produced in Greece” masked) to a number of shoppers defined by quotas, and asking them a series of seven questions, namely: i) Do you eat products like this? ii) Do you know where this product is made? iii) Where is that? iv) Does it matter to you where it is made? v) Why do you say that? vi) Does it matter to you where the milk used to make the yoghurt comes from? vii) Where would you expect the milk to come from?[16]The manner in which the survey was conducted was proved by the unchallenged evidence of the managing director and a project manager employed by New Field Work Co. Limited, an independent and experienced fieldwork agency. The reliability of the survey as providing answers to the questions which I have to decide was the subject of expert evidence from Mr John Kelly, instructed by Chobani, and Mr Philip Malivoire, instructed by FAGE. Both Mr Kelly and Mr Malivoire had long experience in market research, including the design and conduct of surveys of this kind. Mr Kelly was given a limited role in the design of the survey, including approval of the questions. Mr Malivoire commented upon the pilot survey, on which the main survey was then based. Both of them provided multiple reports on the main survey for the purposes of these proceedings. Having heard both of them cross-examined at some length, I found Mr Malivoire to be a considerably more reliable expert than Mr Kelly, in particular in relation to the matters upon which their opinions differed. The principal bone of contention about the meaning and reliability of the survey arose from the ambiguous terms of question 1. What does a busy shopper, who has a pot of FAGE’s Total authentic Greek yoghurt thrust into his or her hands understand the question “do you eat products like this?” to mean? Are they being asked whether they eat yoghurt, thick and creamy yoghurt, Greek style yoghurt, Greek yoghurt or just milk products in plastic pots which might include yoghurt, sour cream and crème fraiche?[17]In paragraph 6 of his third witness statement (made on 11 February 2013) Mr Kelly said that:
“Of course, what Question 1 seeks to do is to filter out only those that do not eat yoghurt… (and later in the same paragraph) … the screening question used is to identify yoghurt eaters, from those that do not…”
By contrast in his cross-examination, Mr Kelly advanced a range of possible classes captured by Question 1 including a class excluding any yoghurt eater who never ate Greek yoghurt, and a class excluding those who eat neither Greek nor Greek style yoghurt. It emerged in cross-examination that although he said that he had approved the drafting of the survey questions, he had in fact assumed that the court had already approved them, and had no idea of his own as to the purpose for which the survey was being conducted. I am afraid that I found his evidence, in the aggregate, about the meaning of Question 1 and the class likely to be captured by an affirmative answer to it to be muddled, inconclusive and self-contradictory. … the screening question used is to identify yoghurt eaters, from those that do not…”[18]By contrast, Mr Malivoire was in his evidence consistent from start to finish about the serious pitfalls likely to be encountered as a result of the ambiguity inherent in Question 1. He so advised on 4 December 2012, after the pilot survey, but before the main survey was conducted. He repeated that opinion in his main report dated 6 February 2013. In his third witness statement, by then informed by having read some of the recorded verbatim responses of interviewees noted by the field workers as meaning “yes”, that the ambiguity in the question had given rise to precisely the difficulties which he feared would occur. Save that I doubted whether many interviewees would think that question 1 extended as far as sour cream or crème fraiche, I found his evidence on this point to be clear, consistent and well-reasoned. The unfortunate result is that the court is left with a very difficult task in identifying with any accuracy the class actually captured by an affirmative answer to Question 1, with consequential difficulties in identifying by extrapolation the size of the sub-classes of UK consumers represented by those who said that FAGE’s authentic Greek yoghurt came from Greece, and those who said that this mattered to them.[19]Mr Malivoire made a number of other criticisms of the defendant’s survey, but these were of much less significance than the problems arising from Question 1. He acknowledged in cross-examination that the methodology of the survey (in terms of locations and quotas) was likely to have captured a reasonably representative group of UK consumers, even if less than ideal for consumers of a premium value product. He did not significantly criticise the mathematics lying behind the percentages of those who answered Question 2 and following. Nor did his evidence significantly undermine the impression to be derived from the evidence of the fieldwork company’s employees, taken together with Mr Kelly’s evidence, that the survey was competently conducted and supervised. I will return to my conclusions about what may properly be derived from the survey when setting out my findings of fact.[20]Both parties deployed evidence from a significant number of witnesses. FAGE called four witnesses who were serving or former employees of one or other company, three trade witnesses connected with other suppliers of yoghurt to the UK market, plus one under a Civil Evidence Act notice, and one witness as a representative of the yoghurt consuming public.[21]The four party witnesses were Mr Nigel Amos, the current managing director of FAGE UK, Mr Gordon Conrad, that company’s founder, Mr Athanassios Filippou, a director of FAGE UK and Mr Spyros Gianpapas, the director of quality assurance, R & D, Regional Factories at FAGE SA. Mr Amos was the main party witness for FAGE, and he was subjected to a long and searching cross-examination by Mr Baldwin QC for Chobani. This revealed that Mr Amos’s written evidence had in various respects been considerably over-simplified, and in certain respects materially inaccurate. Nonetheless I found his response to cross-examination to be generally honest and eventually realistic, albeit that from time to time he adopted a rather defensive attitude when presented with documents which, it was suggested to him, tended to undermine FAGE’s case. His position as the main proponent of FAGE’s case meant that, of course, his evidence needed to be treated with some caution. Nonetheless I was satisfied by the end of his cross-examination that he was, particularly in his oral evidence, for the most part seeking honestly to assist the court.[22]Mr Conrad was the original founder of FAGE UK (known until its sale to FAGE SA as Gordon Conrad Limited). He was the originator of FAGE’s development of a market for its Greek made yoghurt in the UK during the 1980s. His recollection of long distant events proved to be less than perfect when subjected to cross-examination, but I found his evidence generally to be frank, open, commonsensical and persuasive. Although he retains no interest in the fortunes of his former company, he was like Mr Amos a little inclined to over-emphasize the focus upon Greek provenance as a main selling point for FAGE’s yoghurt in the UK, which was not wholly backed up by a survey commissioned by FAGE in 1999, although it was in part.[23]Mr Filippou is a director of FAGE UK and was a director and the CEO of FAGE SA in September 2012. His evidence was directed exclusively to meeting the counterclaim arising from FAGE’s letter to Camden Trading Standards. Notwithstanding a firm cross-examination, I found his evidence to be clear, honest and reliable.[24]Mr Gianpapas was called purely to deal with an issue as to the source of the milk used by FAGE SA to make the product which it supplied to the UK market as Greek yoghurt. FAGE had been ordered to provide limited disclosure of documents relevant to the sourcing of its milk supplies and its storage pending yoghurt manufacture. Mr Gianpapas was subjected by Mr Tumbridge for Chobani to a vigorous cross-examination aimed at challenging the adequacy of that disclosure. He displayed a commanding knowledge of the detail of FAGE’s yoghurt manufacturing and milk storage processes which enabled him to beat off that challenge without significant difficulty and, at the same time, to demonstrate his reliability as a well informed and well prepared witness on the narrow issue to which his evidence related. Mr Gianpapas was also briefly cross-examined in relation to Chobani’s counterclaim, but his detachment from that issue meant that he had little of substance to contribute to its resolution.[25]The three trade witnesses called by FAGE were Julie Plant, Allan Windmill and Peter Duncan. Julie Plant is the managing director of the UK distribution subsidiary of the Emmi group which is the largest milk producer in Switzerland, and sells yoghurt in the UK under the Onken brand. She is also a member of the Yoghurt and Short Life Dairy Products Committee of the Provision Trade Federation (PTF). She had almost 20 years’ experience of importing yoghurt into the UK.[26]Mr Windmill worked successively for two UK based yoghurt producing companies, Raines Dairy Foods Limited and then Yeo Valley, between 1983 and 2009, since when he has provided independent consultancy services to the yoghurt industry. Mr Duncan was the co-founder of Stapleton Farm in 1975 and has since been a partner in that business, which makes and sells yoghurt and other milk products (including ice-cream) in the UK.[27]FAGE’s three trade witnesses gave written and oral evidence uniformly to the effect that the understanding of each of them was and always had been that Greek yoghurt meant (among other things) yoghurt made in Greece. They were each cross-examined in varying levels of detail, and demonstrated independence, honesty and therefore reliability. Since they had each been connected with one or more of FAGE’s competitors in the UK market, there was no reason to suppose that their evidence was tainted by any partiality towards FAGE, although it was evident that they each regarded Chobani’s use of the description Greek yoghurt for a product made in the USA as a misleading trade practice by an aspiring competitor in the same market. The same may be said of the written evidence of Mr Andrew Bowden, who worked in the yoghurt industry from 1995 until 2011. Since he briefly worked for FAGE at the end of that period he lacked some of the independence of the other three. More importantly, his evidence was tendered under the Civil Evidence Act due to his absence in Australia at the time of the trial. Although he had offered to be cross-examined by a form of deposition process, this failed to materialise.[28]Finally, FAGE called a single consumer witness, Fiona Prior. She had been given a free sample of Chobani yoghurt at a promotional event outside a supermarket in October 2012, thinking from its description as Greek yoghurt that it had been made in Greece. On her later discovery at home of the “made in USA” legend on the back of the pot, she was sufficiently incensed to make her own complaint to Trading Standards, describing Chobani in her view as a “Yankee interloper”. She had worked during the 1980s for Safeway supermarkets in a role which gave her responsibility for labelling, packaging and trading standards and readily acknowledged in her witness statement that she was therefore something of a “label freak”. For that reason, and because of the intensity of her interest in food, including its methods of manufacture, Mrs Prior could not be described as a typical consumer. She was nonetheless an impressive witness with a remarkable memory, who easily rebutted the suggestion in cross-examination (based upon her pejorative description of Chobani as Yankee interlopers) that she had some built-in dislike of Americans. On the contrary, I was satisfied that her disapproval of Chobani was entirely based on her perception that she had, albeit for a relatively short time until she studied her free Chobani yoghurt pot in minute detail, not merely been misled, but deceived.

Chobani Witnesses

[29]Chobani called three party witnesses, no trade witnesses, one yoghurt expert and three witnesses for the formal purpose of proving details about the market survey and a photographic exercise. The written evidence of two witnesses concerning, respectively, the Greek and USA yoghurt markets was deployed under the Civil Evidence Act. It appears that Chobani had hoped to deploy the evidence of a trade witness from Tesco, but that he eventually declined to give evidence.[30]Chobani’s party witnesses were (in the order in which they were cross-examined) Nicolaas Bevers, Laura Briggs and James McConeghy. Miss Briggs and Mr McConeghy gave their evidence by video conference from the USA.[31]Much the most important of the three was Mr Bevers since, as Chobani’s Vice-President for International Business Development, he had masterminded the project to introduce Chobani’s yoghurt to the UK market. Mr Bevers came across as an exceptionally intelligent, quick-witted and engaging witness, fully responsive to cross-examination by Mr Daniel Alexander QC for FAGE. As the progenitor of a project which had become embroiled in expensive and public litigation, Mr Bevers was clearly (and perhaps understandably) a very partisan advocate for Chobani’s cause and for his part in it, to a much greater extent than Mr Amos or FAGE’s other party witnesses.[32]On a small number of occasions during cross-examination I consider that Mr Bevers also resorted, when cornered, to deliberate untruth. For present purposes those instances mean that I have been obliged to approach Mr Bevers’ evidence with real reserve as to its reliability. Nonetheless, large parts of his evidence seemed to me to be the truthful product of a good memory of relatively recent events, where he did not regard a full and honest account of his dealings as being adverse to Chobani’s case.[33]Ms Briggs is the Chief Communications Officer for Chobani Inc., having joined in 2009 with the initial title of Vice-President of Corporate Communications. She has since 2009 been responsible for leading and overseeing Chobani’s global communications strategy and execution, including in the UK. She was called to deal with an entry on the Chobani UK website (chobani.co.uk) which included under a Frequently Asked Questions page the following exchange:
“What’s Greek about Chobani? (Answer) “We get this question a lot! Many people think that “Greek” yoghurt refers to where we make our yoghurt, but it actually describes how we make our yoghurt”. ”
This entry was removed in November 2012, shortly after the start of this litigation.[34]Ms Briggs was a clear and precise witness to whom the video conference process under which she was cross-examined presented no obstacle to understanding the questions or providing clear answers. She was, unfortunately, either very ill-informed or untruthful. She said in cross-examination that the entry in the UK FAQ was removed from Chobani’s UK website as part of an overall refreshment of the Chobani website internationally, that its removal had nothing to do with this litigation, and that the timing of its removal and the start of this litigation was a pure coincidence. She said that she had been personally involved in the refreshment of the website, although she did not personally remove that particular question and answer.[35]Unfortunately for Ms Briggs, Mr Bevers had already given written evidence that the question and answer had indeed been removed as a result of this litigation. When this evidence was presented to her in cross-examination, her lame response was that she had simply been unaware that this was so. More generally, Ms Briggs struck me as a witness who had prepared carefully before giving her evidence. In my judgment she knew that the relevant question and answer had been removed from Chobani’s UK website because of its implications for this litigation. She had forgotten (or not been informed) that Mr Bevers had admitted that in his own evidence, and she decided, probably on the spur of the moment, to lie about it. The result is that I have been unable to place significant reliance upon her evidence, save where corroborated by the documents or the testimony of other more reliable witnesses.[36]Mr McConeghy is the Chief Financial Officer of both Chobani companies. His written evidence consisted of a witness statement prepared in response to FAGE’s application for an interim injunction. As a result, it covered wide areas on the basis of information and belief which fell outside his immediate purview. In particular, as became clear during his cross-examination, Mr McConeghy professed no particular knowledge about the UK yoghurt market, and his trenchant view that “Greek yoghurt” is synonymous simply with strained yoghurt, regardless of origin, was based upon his perception of the yoghurt market in the USA, together with some further unspecified research of his own.[37]Mr McConeghy appeared under cross-examination to be a straightforward witness who gave careful thought to his answers, but who declined to engage with what he regarded as hypothetical questions. I found him to be a reliable witness about matters of which he had personal knowledge, although in the event this covered only limited aspects of the matters which I have to decide.[38]The witnesses called by Chobani to prove their surveys were Rosemary Henshall, Mark Burness and Katerina Mikheev. The evidence of the first two was accepted by FAGE without cross-examination. Ms Mikheev, a solicitor with Chobani’s solicitors Gowlings, was called to explain the pilot survey conducted in December in the Leadenhall Market in London and a photographic exercise which she asked members of her firm to carry out in local supermarkets. She helpfully amplified that evidence in cross-examination and there was no challenge to her reliability.[39]Although Chobani called no trade or consumer witnesses, they did rely upon a witness statement from Rosemary Barron, an author and educator specialising in Greek food, drink and culinary culture. She provided a brief account of the types of yoghurt available in Greece. She was unable to give oral evidence at trial due to illness. Finally, Chobani relied upon the expert evidence of Michael Hickey, currently the Chair of the Science Programme Co-ordination Committee of the International Dairy Federation (“IDF”), a not-for-profit international organisation based in Brussels. He has a degree in dairy science from University College, Cork. His main expertise lay in the physical characteristics of different kinds of yoghurts, from a scientific perspective. He had also researched into the history of fermented milk products, and in particular the history of yoghurt production in Greece. He did not claim to be an expert in matters of marketing or consumer perceptions, although his visits to supermarkets while working in the dairy industry in Ireland enabled him to claim to be a more discerning commentator about the sale of yoghurt on supermarket shelves than the average consumer. Within the confines of his particular expertise I found Mr Hickey to be a well informed, independent expert determined to do his duty to the court. The Facts about the Claim

Yoghurt

[40]The turning of milk into yoghurt by fermentation goes back, according to Mr Hickey, some 15,000 years. The scale of its production and use in Western Europe substantially increased during the 20th century with the introduction of pasteurisation of milk, and increased interest in the potential health benefits of fermented milk products. A particular boost to its acceptance as a mainstream dietary product occurred when, beginning in Switzerland in the 1950s, yoghurt came to be sweetened and mixed with fruit flavourings. For at least the last 40 years yoghurt may now be found in plain or flavoured varieties, in normal, concentrated or diluted textures with varying levels of fat, and in various special varieties of those types such as organic and pro-biotic.[41]Beginning in 1976 an inter-governmental body known as the Codex Alimentarius Commission began elaborating standards for yoghurts, leading to a single standard for fermented milks in 2003 (the “Codex Standard”). According to Mr Hickey, the Codex Standard may in relation to yoghurt be loosely described as identifying four main classes: i) Plain yoghurt (which may be set, stirred or fluid). ii) Concentrated yoghurt, with an increased protein content where the concentration is achieved by ultra-filtration, separation or straining, or by the addition of thickening agents. iii) Flavoured yoghurts where the flavourings (including sugars, fruit, cereals, nuts, honey and chocolate) may be either mixed or layered with the yoghurt, or separated from the yoghurt in twin-pots. iv) Drinks based on fermented milks (including yoghurt), the best example in the UK market being Yakult.[42]Although almost all the yoghurt sold in the UK is now derived from cows’ milk, yoghurt has historically been made from milks from a variety of animals, including buffaloes, ewes, goats and camels. Yoghurt in Greece[43]Due to its particular terrain, milk production for human consumption in Greece was traditionally derived more from ewes and goats than from cows. At least as late as the 1940s almost all yoghurt offered for sale in Greece was produced from ewes’ and goats’ milk. More recently, increased demand all year round, together with a preference for lower fat food products, has led to an upsurge in the production and sale in Greece of yoghurt made from cows’ milk, and the relative scarcity of meadows has meant that the market for milk and milk products has become increasingly dependent upon milk imports.[44]The traditional method of making yoghurt in Greece was to set it in open topped containers so that it formed a thick skin on the surface. The use of ewes’ and goats’ milk did not require it to be concentrated so as to give it a sufficiently thick texture. Nonetheless, straining of yoghurt derived from cows’ milk through cloth bags so as to give it a sufficiently thick and creamy texture has been a common method of yoghurt production in Greece for many years. Yoghurt produced by that method is commonly sold in Greece under a Greek language equivalent of the description “strained yoghurt”.[45]The production in Greece of thick and creamy yoghurt from cows’ milk on an industrial scale cannot economically be achieved by means of straining through bags. Other methods of separating out the whey so as to thicken the yoghurt are now commonly used, but the product is nonetheless still described by the Greek language version of the word “strained”.[46]FAGE began producing yoghurt in Greece in the late 1920s. Its yoghurt has always fallen within the second of Mr Hickey’s four categories, and the thick and creamy texture has, in relation to yoghurt made from cows’ milk, always been achieved by straining (including for that purpose the more modern industrial methods) rather than by the addition of thickening agents. FAGE now sources most of the milk for yoghurt which it sells in the Greek market from outside Greece. Its yoghurt is sold in Greece under the TOTAL brand, but it is not described as “Greek yoghurt”. It is described by the Greek equivalent of the phrase strained yoghurt. Greek Yoghurt in the UK[47]FAGE began producing yoghurt under its TOTAL brand for the UK market in 1983, selling it through the means of an exclusive distributorship agreement with FAGE UK, then (and until 2005) called Gordon Conrad Limited. It was, from the outset, described on its labelling as Greek yoghurt. It has generally been sold as plain, thick and creamy yoghurt and FAGE has throughout been the dominant supplier of product labelled Greek yoghurt to the UK market, its present market share being in excess of 95%. Its Greek yoghurt sold in the UK has always been produced by a straining method (albeit otherwise than through cloth bags) and I am satisfied that, at least by 2012, its production of Greek yoghurt for the UK market has been from milk sourced only from Greek cows. It is not clear for how many years this has been so, but it is undisputed that, from 1983 to date, the whole of its production of Greek yoghurt for the UK market has been carried out in Greece. I am also satisfied, despite some evidence to the contrary, that the whole of its Greek yoghurt sales to the UK have been derived from cows’ milk rather than ewes’ or goats’ milk.[48]Prior to September 2012 FAGE’s main competitors in the supply of product in the UK described as Greek yoghurt were three in number. The supermarket chains Tesco and Asda each offered an own-label Greek yoghurt. The third company, Kolios, sold a product described as Greek yoghurt through the membership warehouse chain CostCo. Very small amounts of Greek yoghurt are or may be found from small individual Greek producers, in local specialist Greek food shops, but they represent an insignificant share of the UK market.[49]I am satisfied that all the yoghurt sold in the UK as Greek yoghurt, both by FAGE and its three significant competitors, has at all material times been made in Greece, and its thick and creamy texture has been achieved by straining rather than by the addition of thickening agents.[50]I must deal briefly with evidence suggesting two possible exceptions to that conclusion. The first relates to the supply by Raines to Marks & Spencer in about 1984 of a yoghurt product which Marks & Spencer wished to sell in competition with FAGE’s Greek yoghurt. It was neither made in Greece nor strained. In his witness statement Mr Conrad said that this had been introduced by Marks & Spencer described as Greek yoghurt, and only re-labelled after a complaint from him. In fact, as Mr Windmill said, that product was from the outset sold by Marks & Spencer as an own-label Greek style yoghurt. In cross-examination Mr Conrad eventually accepted that his recollection on this point had been wrong.[51]The second exception concerns Stapletons’ “Greek recipe” yoghurt, sold through Waitrose. It is a yoghurt made in England from Jersey milk, without using thickening agents. The pot is surrounded by a removable sleeve. Once removed, it reveals writing on the inside of the sleeve which includes the statement “We first started making Greek yoghurt in 1983, and after a break, here it is again.” Mr Duncan of Stapletons admitted in oral evidence in chief to real embarrassment about what he described as a typographical error in that quoted statement. The gist of his evidence was that Stapletons were, subject to that error, careful to avoid describing their yoghurt as Greek yoghurt, precisely because it was not made in Greece. I am satisfied that this isolated and apparently accidental error does not detract from the uniformity of the labelling convention which prevailed in the UK from the mid 1980s until September 2012, namely that the only yoghurt labelled Greek yoghurt when offered for sale in the UK was made in Greece, and rendered thick and creamy by straining.[52]The uniformity of that convention is reflected in the minutes of a meeting on 17 May 2012 of the Yoghurt and Short Life Dairy Products Committee of the PTF, attended by representatives of companies responsible for about 70% of yoghurt sales in the UK. After noting that there appeared to be no definition of Greek style yoghurt, the minutes continued:
“The term ‘Greek yoghurt’ applied to traditional yoghurt produced in Greece which had been strained to remove the whey, giving a consistency between that of yoghurt and cheese. The Committee believed that consumers perceived ‘Greek style’ to refer to yoghurt with a thicker consistency but not necessarily as a result of straining.”
[53]As I mentioned in the introduction to this judgment, the phrase Greek yoghurt forms only part of FAGE’s description of its product on its labelling. Much the largest element in the labelling is the brand name Total, and the second most prominent element is FAGE’s own corporate name on a blue band in front of a red oval. On the examples shown and pictured in the evidence, FAGE usually (although not invariably) uses the words Greek yoghurt as part of a larger phrase, namely “authentic Greek yoghurt”.[54]Similarly, the sample pot of Asda’s own label yoghurt made in Greece is described as authentic Greek yoghurt. The Tesco own label Greek made yoghurt, sold as part of its Tesco Finest range, is called natural Greek yoghurt. Greek Style Yoghurt[55]As is reflected in the above quotation from the PTF committee minutes, a number of yoghurt manufacturers have sold thick and creamy yoghurt in the UK described as Greek style yoghurt. Much of it is manufactured within the UK. None of it is manufactured in Greece. The evidence does not permit me (any more than it did the PTF committee) to reach any firm or precise conclusions as to its mode of manufacture, save that its thick and creamy texture appears predominantly to have been attributable to the use of thickening agents rather than straining or other methods of concentration. Whereas most Greek yoghurt is sold in plain or twin-pot form, Greek style yoghurt is sold in a broad range of varieties in terms of the inclusion of different types of sweetening or flavouring. The only defining features of Greek style yoghurt sold in the UK which can be identified are that it is thick and creamy and not made in Greece.[56]The producers of Greek style yoghurt include most of the major yoghurt producers in the UK market, together with supermarkets selling under their own labels. Thus for example, both Tesco and Asda sell own label Greek style yoghurt as well as their own label Greek yoghurt which I have already described.[57]There are minor variations from the use of Greek style as a description of yoghurt of this type. I have already referred to Stapletons’ Greek recipe yoghurt. Another small scale variation is Greek style with honey yoghurt, sold as a branded product by Yeo Valley through Tesco. UK Market Shares[58]The evidence does not enable me to determine precisely the proportion which thick and creamy yoghurt (i.e. Greek plus Greek style yoghurt) bore to the totality of yoghurt sold in the UK, either in 2012 or at any earlier time. To the nearest 0.5% it appears that the proportion in 2012 was about 7.5%, split as to 5.5% Greek style and 2% Greek, in each case by retail price rather than volume. As I have said, FAGE’s share of the Greek yoghurt sales was more than 95%, amounting to a retail sales turnover of approximately £30 million. Mr Amos said that FAGE’s UK sales revenue (all of which is wholesale) had trebled from £7m in 2005 when FAGE SA acquired FAGE UK, to a projected £21m in 2012.[59]FAGE’s case was that Greek yoghurt commanded a higher price than Greek style yoghurt in the UK retail market, and that its own Total brand was the price leader in the thick and creamy yoghurt market consisting of Greek and Greek style yoghurt. Inspection during Mr Amos’s cross-examination of the data which FAGE had derived from a Nielsen database showed that the picture is in fact less simple than that. There are a number of Greek style branded yoghurts which sell for higher prices than some own label Greek yoghurts. Mr Baldwin was even able to produce two examples of Greek style yoghurt retailing at a higher price than FAGE’s Total brand. One of those was to be found in the Nielsen material, but it was statistically insignificant and the stated price of £14.33 per kilo may simply have been a mistake. The other, sold under the Oykos brand, was found in an Asda on-line catalogue. It was a fruited yoghurt, but the evidence did not clearly show whether this justified a higher price than FAGE’s plain Greek yoghurt.[60]The Nielsen derived figures did however clearly demonstrate that, in terms of average prices derived from comparing volumes, Greek style yoghurts retailed at a substantially cheaper price than Greek yoghurts, the relevant averages being (on my calculations) £2.74 per kilo and £4.86 per kilo respectively. A literal average of prices regardless of volumes produced £3.51 per kilo and £5.31 per kilo respectively, but I did not regard these crude averages as significant, by comparison with those based on volumes.[61]It is instructive to compare the prices charged for own label Greek and Greek style yoghurts by Asda and Tesco. The Greek style prices are significantly lower. For example, Tesco’s Greek yoghurt sells at £2.97 per kilo whereas its Greek style yoghurt sells at £2.02 per kilo. Thick and creamy yoghurt in the USA[62]It is common ground that FAGE was also the original creator of the market for Greek yoghurt in the USA, starting in about 1998. Its product was originally made in Greece, imported to the USA and sold as Greek yoghurt. After competitors started selling yoghurt not made in Greece as Greek yoghurt in the USA, FAGE began to produce its own yoghurt in the USA in about 2008, continuing to market it as Greek yoghurt.[63]Chobani was founded in 2005 in the USA by its current president and CEO Mr Ulukaya. Both he and the designer of Chobani’s yoghurt making recipe are of Turkish origin. Chobani’s product was, from the outset, aimed at competing with FAGE’s Total brand in the USA. Its thick and creamy texture is and has always been achieved by an industrial straining process.[64]The fine details of the processes used by both FAGE and Chobani for making their thick and creamy yoghurts are trade secrets, but they are of no relevance to the issues in this claim. In the USA market both FAGE and Chobani promote their yoghurt as being free from additives such as thickening agents. Nonetheless, the evidence does not show that there is a uniform labelling convention in the USA by which the description Greek yoghurt is confined to strained yoghurt, although it was clear from the evidence of the Chobani party witnesses that they regarded it as a commercial objective to achieve such a convention, and that they regarded yoghurt in the USA thickened by additives rather than by straining as inappropriate and damaging to Chobani’s goodwill when labelled as Greek yoghurt. It was indeed the uniformly professed belief of each of the Chobani party witnesses that, both in the USA and internationally, the expression Greek yoghurt was synonymous with strained yoghurt, but that it imported no statement as to its place of manufacture. Chobani comes to the UK[65]Having achieved a substantial measure of success in competition with FAGE at the premium end of the USA yoghurt market, Chobani resolved to seek further markets overseas. It began selling its product as Greek yoghurt in Australia in 2011. Consideration within Chobani as to whether to enter the UK market also began at the beginning of 2011. From start to finish, Mr Bevers was in charge of the project. He worked on the project largely on his own, although for part of the time he was training up an intended successor who, in the event, left Chobani to work elsewhere. Although Mr Bevers had a life sciences engineering degree and considerable business development experience, he had no prior knowledge or experience of the UK yoghurt market, and was therefore heavily dependent upon advice from external market analysts and consultants.[66]It is a striking feature of the surviving documentary records of the advice which Mr Bevers received that they uniformly, and without exception, warned him that to describe yoghurt sold in the UK as Greek yoghurt would convey the meaning that it was made in Greece. The earliest record of this advice appears in an email from Ms Anne Dettmer of Artisanne’s, the UK in-market representative of the Food Export Association of the Midwest USA and Food Export USA – North East, on 1 February 2011. She concluded:
“Also, for your interest, we are sure that only yoghurt manufactured in Greece may call itself Greek Yogurt. All other strained yogurts from countries other than Greece (EU and elsewhere) are called Greek Style. We are of course checking into the accuracy of that.”
[67]Artisanne’s produced a UK market report for Chobani in late February 2011 which included the advice that, if it imported its product into the UK:
“Chobani would also lose its on-pack claim to Greek yogurt and would need to describe itself as Greek-style.”
Earlier in the same report, when describing FAGE as the main UK competitor, it stated:
“FAGE’s Total is the UK’s brand leading Greek yogurt. It is the only mainstream brand imported from Greece, which permits it to classify itself as Greek yogurt, leaving its competitors to content themselves with a description of Greek style.”
[68]In his cross-examination, Mr Bevers described this advice as just an unasked for opinion which surprised him, contained in a report full of mistakes, from a writer with no expertise outside basic market research. He said that he complained about its quality to the writer’s employers. Nonetheless, Artisanne’s retainer by Chobani continued into 2012, since on 20 January Ms Dettmer emailed Mr Bevers, following a conversation, saying under the heading “Greek versus Greek style”:
“I can only reinforce the previous documented advice in which I explained that Chobani would not be permitted to describe its US produced yogurt as Greek yogurt. Its packaging when exporting to the UK or indeed, to any other EU countries would have to be changed. Like all the currently manufactured brands (Muller – see below – Danone, Rachel’s, Yeo Valley and all major multiple brands such as Tesco and Sainsbury) available in the UK market sector that …strained Greek recipe yogurt, you would need to describe the content as – Greek Style Yogurt unless, like FAGE’s Total brand, it is made in Greece. The primary reason is that a product must not mislead the consumer and if a consumer sees ‘Greek yogurt’, the assumption is that the product is made in Greece. If it says Greek Style, then it is clear that the product is made in the style of Greek yogurt but that it is made elsewhere.”
[69]Mr Bevers was evidently reluctant to accept this repeated advice, apparently (as appears from his emails at the time) because he thought he could buy locally made yoghurt in the Netherlands sold as Greek yoghurt and because, after initial hesitation, Chobani had managed to launch its product in Australia as Greek yoghurt without running into difficulty. He sought advice in January 2012 from a Miss Fiona Fitzpatrick, an independent business consultant. Her emailed response confirmed Ms Dettmer’s view and records her understanding from conversations with Mr Bevers in December 2011 that he had then been of the same view. It is clear from Mr Bevers’ email to Ms Fitzpatrick of 20 January 2012 that he knew that all thick and creamy yoghurt products not made in Greece were called Greek style in the UK. Ms Fitzpatrick’s advice that Chobani could not describe its product in the UK as Greek yoghurt was nonetheless accompanied by advice that, to minimise trading losses in the short term, it would be necessary for Chobani to:
“Position ourselves against Total rather than Greek-style yoghurts.”
[70]In March 2012 Mr Bevers received advice from Leatherhead Food International Limited (labelling experts) that it would be more accurate to describe Chobani’s product in the UK market as Greek style yoghurt rather than Greek yoghurt.[71]Also in March 2012 Mr Bevers, accompanied by Ms Fitzpatrick, attended a meeting with a Mr Renshaw, Tesco’s buyer for chilled dairy products including yoghurt. Her notes of “things we learned” (by implication from Tesco) included:
“Provenance is important to the UK consumer.”
Under “Implications” Ms Fitzpatrick wrote:
“We need to understand how the UK consumer feels about Greek vs Greek Style.”
Under “Action” she wrote:
“Include in Omnibus questions.”
[72]In April 2012 Mr Bevers obtained a proposal for omnibus research from Good Stuff Consulting, one of the objectives of which was to answer the question:
“What do consumers understand by the descriptors “Greek” and “Greek Style” yoghurt?”
[73]Mr Bevers said that, in the event, omnibus research was not commissioned. He placed great emphasis on what he said had been Tesco’s attitude to the issue, in coming to his own conclusion that, notwithstanding all the advice which I have described, Chobani’s product should be launched in the UK market as Greek yoghurt. Chobani were unable to produce any written evidence of Tesco’s attitude to this issue, other than answers by Mr Renshaw to questions from Chobani’s solicitors preparatory to drafting a witness statement for him. Mr Renshaw was the witness from Tesco whom Chobani sought to persuade to give evidence in these proceedings but without success. In the circumstances I cannot place significant reliance on that material.[74]Mr Bevers then commissioned a marketing report based upon focus group research carried out by Greenlight International. Its research was based upon responses from small focus groups of potential consumers. Its advice (given in the form of slides) included:
“None familiar with process of Greek yoghurt making – assume that if it’s Greek it comes from Greece, rather than a function of how it’s made. No spontaneous dialogue about Greek vs. Greek-style, though when prompted, perception that Greek is more authentic (i.e. comes from Greece).”
In its conclusions on the Greek or Greek Style issue, the bullet point advice about consumers’ perceptions was:
“No real knowledge of difference between Greek and Greek Style – former assumed to have come from Greece!”
[75]The research carried out by Greenlight included questions to focus groups about a possible launch of yoghurt made in the USA as Greek yoghurt. Greenlight received comments, quoted in its report, like: “How can this be Greek yoghurt if it’s from America?” and “What a confidence trick – it can’t possibly be Greek yoghurt when it’s made in America.”

and

[76]Chobani’s decision, led by Mr Bevers, to launch its product in the UK market as Greek yoghurt appears to have been made in about June 2012. A telling insight into Mr Bevers’ thinking emerges from an email to two of his colleagues dated 15 June containing the following relevant observations:
“1. The focus group study outcome: consumers in the UK know the difference between Greek and Greek Style yogurt. 2. The difference is the manufacturing process: whether you add stuff or take some liquid out, according to UK consumers. 3. All Greek Style yogurt SKUs in the UK … contain added stuff, like MPC. 4. That’s why those are called Greek Style: they are knock off’s. 5. Greek yogurt is not protected; we mention on our label that it is made in the USA: we don’t hide the manufacturing location 6. The only Greek Yogurt in the UK is from FAGE. 7. FAGE sells “Greek Yogurt” in the USA, made in the USA – I can’t imagine they are going to object to us…selling Greek yogurt outside the USA…made in the USA. 8. … 10. We believe in our product; if someone wants to challenge us, we will have to protect “Greek Yogurt”. 11. To sell Chobani in the UK as “Greek Style” means we are competing with products that are much cheaper to make, have inferior quality in terms of thickness, etc. That might be too challenging. 12. The risk…well, let’s take the risk away! In ALL of our communications, perhaps including SRP, let’s make it clear that this product is made by a third generation dairy processor in the hills of New York, USA.”
The reference in paragraph 12 of that note to the “SRP” is to Shelf Ready Packaging, which is used to place the product of a particular manufacturer on a supermarket shelf. It has triangular patches at each end upon which critical marketing information can be printed.[77]Paragraphs 1 and 2 of Mr Bevers’ note are directly contrary to the uniform advice which he had by then received over a period of one and a half years, including the gist of the advice on that issue in the Greenlight focus group report. In that respect, Mr Bevers was either deluding himself or deceiving his colleagues. In any event, the note makes it clear that he decided that Chobani should take the risk that a substantial proportion of the relevant yoghurt eating public in the UK would think that Greek yoghurt meant yoghurt made in Greece, because he recognised an insuperable commercial disadvantage in positioning Chobani’s product against the existing Greek Style yoghurt available for sale in the UK. He planned, at least at that stage, to minimise the risk by conspicuous messages that Chobani’s product came from the USA, and regarded the risk that manufacturers of yoghurt made in Greece but selling into the UK would take steps to object as being manageable, because of FAGE’s practice of selling its USA made product, in the USA, as Greek yoghurt.[78]Further evidence that Chobani were well aware that a significant proportion of the English yoghurt buying public would think, unless disabused of the notion, that Greek yoghurt meant yoghurt made in Greece may be found in Chobani’s Staff Training Manual for Front of Store Activation, deployed for the purposes of its launch in the UK. Slide 6 is headed:
“Chobani dispels the Greek yoghurt confusion… Its not yoghurt from Greece… it’s the process that makes it Greek!”
Its not yoghurt from Greece… it’s the process that makes it Greek!”[79]Unfortunately Mr Bevers’ apparent resolution, in paragraph 12 of his email of 15 Jun, to minimise the risk by a conspicuous statement of Chobani’s product’s USA place of manufacture was not followed through. The SRPs prepared for the presentation of Chobani’s product on the shelves of English supermarkets contained conspicuous reference to its being Greek yoghurt, but no mention of its American origin. The pots themselves describe the contents conspicuously both on the removable cap and the front of the pot as Greek yoghurt. The legend ‘made in the USA’ appears on the back of the pot in very small print, and would be invisible to any shopper viewing the pots in their SRP on a supermarket shelf. Like Mrs Prior (the only consumer witness to be called) they would discover the product’s US origin, if at all, only after taking it home and, in all probability, eating it.[80]Mr Bevers attempted in his written and oral evidence to play down the effect of the advice which he received, and to suggest that he learned of nothing sufficient to lead him to doubt that, in the UK as in the USA, Greek yoghurt simply meant strained yoghurt, regardless of its place of manufacture. In the end I did not find that evidence honest or credible. I consider that he well knew that by labelling its product in the UK market as Greek yoghurt Chobani would be taking at least a serious risk of misleading the buying public. He calculated that the risk was justified by the commercial advantage of positioning Chobani’s product against FAGE’s Greek yoghurt, rather than against cheaper Greek style yoghurts. Public Perception[81]The relevant time for testing whether the use of a particular name or get up has attached to it the reputation and goodwill necessary for founding a passing-off claim is the moment when the allegedly offending product first appears on the market: see Chocosuisse Union Des Fabricants Suisse de Chocolat v Cadbury Ltd [1999] RPC 826 (the Chocosuisse case). The manner in which the allegedly offending product is then marketed and sold is relevant only to the question of misrepresentation. Nonetheless I must briefly mention a further attempt to present yoghurt not made in Greece to the UK market under the description Greek Yoghurt which was restrained by interim injunction, pending the outcome of these proceedings, at the beginning of 2013. This was a strained yoghurt made by Danone in Poland. Danone was by then an established supplier of yoghurt to the English market, and its decision to follow in Chobani’s footsteps was relied upon by Chobani as evidence that there was no uniform understanding among yoghurt producers that Greek yoghurt meant yoghurt made in Greece.[82]I do not find Danone’s attempt to launch its Greek yoghurt not made in Greece in 2013 as being of significant weight in that regard. The evidence did not show whether Danone had already decided to do so before Chobani’s product appeared on the English market, or whether it did so out of the need to position itself alongside Chobani’s expected competition, and to distinguish its strained yoghurt from that thickened by additives. Furthermore, the uniform understanding expressed by all the trade witnesses called by FAGE to give evidence was entirely consistent with the advice which Chobani received before its launch, namely that, in England, Greek yoghurt meant, and had always meant, thick and creamy yoghurt made in Greece.[83]The evidence thus far of the existence of a uniform but unwritten labelling convention to that effect adhered to by yoghurt producers in the UK market for over 25 years, the unanimous view of the trade witnesses, coupled with the uniform advice to Chobani to the same effect during 2011-2012 might, without more, lead easily to the inference that the UK yoghurt buying public did indeed share the understanding that a product labelled Greek yoghurt was yoghurt made in Greece. But there are contra-indications in the evidence, much relied upon by Chobani, which I must now describe. The outcome of its market survey, however difficult to interpret, also suggests that the picture thus far presented is, when translated into public perception, not as straightforward as it first appears. I must now describe those contra-indications, and the conclusions of fact reached from weighing them against the evidence thus far described. Shelf-edge Labelling[84]Supermarkets almost invariably display their prices for products on their shelves by means of small labels attached to the shelf edge, usually just below, but invariably in the vicinity of, the products displayed for sale. The labels generally contain a conspicuous statement of the price (and an even more conspicuous statement of promotional prices) and, usually, a less prominent abbreviated indication of the products to which those prices relate. I shall call them shelf edge labels.[85]The photographic evidence shows that some supermarket chains in at least some of their retail stores use shelf edge labels which display prices for both Greek and Greek style yoghurt under the abbreviated phrase Greek yoghurt. Photographs taken by members of Chobani’s solicitors’ staff illustrate this in particular stores operated by Sainsbury and Tesco, and in a shop called Whole Foods in Piccadilly. Rival photographs taken for FAGE for use in cross-examination tended to show that this was by no means a universal practice in Sainsburys’ stores, and that it was not the practice in stores operated by Waitrose, Morrisons or Marks & Spencer.[86]More generally, I do not consider that shelf edge labels significantly detract from the labelling convention to which I have referred, in terms of the net effect of the separate presentation to the public of Greek yoghurt and Greek Style yoghurt, and the use of what are effectively price tags which occasionally adopt the abbreviation Greek yoghurt for both of them. The purpose and effect of the shelf edge labels is to display prices, and the words on them are there merely to link the price to the relevant product. Thus where, for example, a shelf edge label referring to Greek yoghurt lies immediately beneath product prominently displayed as Greek Style yoghurt, it seems to me most unlikely that the average consumer would think that the supermarket was telling him that the product labelled Greek Style yoghurt was really a type of Greek yoghurt. That conclusion would be all the more unlikely to be reached in relation to yoghurt bought in Tesco, which conspicuously distinguishes between its own brand Greek and Greek style products. On-line Catalogues[87]The sale by supermarkets and other retailers of food products by reference to catalogues available on the internet is still a very small but nonetheless growing part of the retail market. Internet download evidence showed that a search of the Tesco, Asda and Ocado on-line catalogues by reference to Greek yoghurt would commonly throw up numerous examples of Greek Style yoghurt and that occasionally the abbreviated descriptions of such products, rather like the shelf edge labels, would refer to them all as Greek yoghurt. FAGE’s witnesses tended in cross-examination to put this down to an assumption that on-line catalogues are compiled by computer technicians rather than marketing experts. Ironically, Chobani’s witnesses were no happier than FAGE’s witnesses in this respect, since the Greek Style yoghurts capable of being identified by a search for Greek yoghurt would commonly be yoghurts thickened by additives rather than straining, contrary to their own professed perception that Greek yoghurt was synonymous with strained yoghurt.[88]In my judgment the more substantial objection to an inference based upon the on-line catalogues that the labelling convention which distinguishes between Greek and Greek Style yoghurt has been largely abandoned arises from the fact that the on-line catalogues invariably display pictures of the packaging and labelling of the yoghurt in its pots, all of which of course comply with the labelling convention, and the detailed description of the products available by clicking on particular examples appear almost without exception to contain narrative descriptions which also conform with the labelling convention. Descriptions of Yoghurt in the Press[89]Mr Baldwin was able to point both in cross-examination and closing submissions to occasions where press articles referring to yoghurt and yoghurt promotions failed to distinguish between Greek and Greek Style yoghurt in accordance with the labelling convention. Reference was made to mention in the Evening Standard of a promotion of Greek Gods’ yoghurt (labelled as Greek Style) as Greek yoghurt, to an article in The Grocer which appears to describe the Greek Gods’ product as if it were another Greek yoghurt, and to an article in the Daily Telegraph commenting upon the Chobani launch containing an interview with Mr Ulukaya, in which the journalist appeared ignorant of the convention.[90]Against that, FAGE relied upon publications by two well-known cookery writers, namely Delia Smith writing in 1999 and Ruth Watson writing in 2000, both advising readers to take care to buy Greek rather than Greek style yoghurt, treating Greek yoghurt as the genuine version, broadly in accordance with the labelling convention. That evidence was slightly undermined by an apparently comprehensive misunderstanding on the part of Delia Smith as to the method of manufacture of Greek yoghurt, and by the written observations of Rosemary Barron, apparently an expert on Greek food, criticising her colleagues’ analysis. Unfortunately Ms Barron could not give evidence due to illness.[91]In my judgment the limited survey of press commentary did not suggest that journalists have a clear awareness of the labelling convention, or of the difference between Greek and Greek style yoghurt, labelled as such in the UK. The publications of the cookery writers are to an extent supportive of FAGE’s case, not least because a product may acquire a reputation and goodwill by reference to a particular name or get up without the consumer having any real understanding of the distinctive aspects of the underlying processes by which it is made. FAGE’s own Market Research[92]In apparent contrast to the uniformity of the market research commissioned by Chobani before its launch in the UK, FAGE’s own research, as revealed by documents disclosed during the proceedings, painted a rather less consistent picture.[93]Taking them in the order in which they were deployed in cross-examination, the first consisted of a pitch for business by a marketing agency AMV BBDO given to FAGE UK by reference to slides on 12 November 2012. It did not purport to be a market survey, but included as a marketing challenge a slide headed:
‘People don’t know the difference’ ‘Aren’t they all the same? I don’t know the difference between Greek and Greek Style yoghurt’
I don’t know the difference between Greek and Greek Style yoghurt’[94]Taken as a whole, the presentation did suggest that a significant proportion of the buying public might have become confused between Greek and Greek Style yoghurt, but its main thrust was the proposition that, for buyers of premium food products, provenance was a matter of real importance. This is summarised by a slide stating:
“We found an interesting insight into their attitude towards food. Things taste better when they are from where they should be from.”
The overall message portrayed by the presentation was that FAGE’s ability to sell its yoghurt as genuinely Greek, i.e. made in Greece, was a powerful selling point which its Greek Style yoghurt competitors lacked, and which it should emphasise in its marketing. Things taste better when they are from where they should be from.”[95]The second item consisted of two presentations by MMR Research Worldwide Ltd, marketing consultants to FAGE, in June and October 2010, about the best flavours to include in a proposed twin-pot range by FAGE under the Total brand. The material did suggest that for the purpose of advice on flavouring, the consultants made no distinction in their minds between Greek and Greek Style yoghurt, referring occasionally to both as Greek yoghurt. The purpose of the research had nothing to do with that distinction, but rather with the public’s preferences in relation to flavouring. It therefore gave no real clue to the extent of the public’s awareness (or lack of it) of Greek yoghurt as a distinctive type made in Greece.[96]The next was a slide presentation for FAGE by Spring Research in May 2010 which included among its objectives the development of an understanding of the target market’s ‘beliefs and thoughts about Total’. Again, the consultants appear to have included within Greek yoghurt at least one Greek Style yoghurt. On slide 25, headed “Our competition isn’t Greek Style but the whole plain yoghurt category”, the first bullet point stated:
“The ladies we spoke to were not aware of the difference between ‘Greek Style’ and ‘Greek’ yoghurts and weren’t really interested in finding out - don’t understand how yoghurt is made or really want to know.”
[97]Mr Amos’ response was that this lack of concern was not about provenance (i.e. where the yoghurt came from) but about method of manufacture. Mr Amos may have been right about that, but the absence of any knowledge as to the basis of the consultants’ market research makes it difficult to draw any clear conclusions one way or the other from the surviving documentary records of that presentation.[98]I pass over a marketing brief prepared for use by a consultancy called Creative Orchestra, as it seemed to me to add nothing of significance. Nor did a qualitative research presentation in April 2009 by Guildwright add much more. It contained comments which might be interpreted as suggesting that the authors treated the Greek yoghurt sector as including Greek style yoghurt. Nonetheless it included as a unique selling point (USP) of Greek yoghurt that it was “authentic – only if from Greece”.[99]Consultancy advice from Nielsen in April 2009, read objectively, appears to suggest that its authors may not have been sensitive to the distinction between Greek and Greek Style yoghurt. Mr Amos said that, whatever a reading of the material by an outsider might suggest, the director of Nielsen who made the presentation made it perfectly clear to him that he understood that Greek yoghurt meant yoghurt made in Greece.[100]Some brief marketing notes by consultants called Shopper Wright in 2008 based upon a series of separate small surveys included the observation, in relation to a discussion with ten women, that:
“Before the discussion Greek and Greek-style yoghurts were largely interchangeable in respondents minds.”
[101]Qualitative research on yoghurt usage and brand perceptions by Metro Research in December 2008 suggest, on the one hand, a lack of clear perception by the presenter about a distinction between Greek and Greek Style yoghurt but, on the other hand, a clear statement that FAGE’s product’s Greek authenticity marked it out from its competitors.[102]Further material from Metro Research in November 2008 and from Wren & Rowe in 2007 again disclosed an apparent tendency on the part of the presenters to include certain Greek style yoghurts within a Greek yoghurt heading, as if insensitive to any distinction between them.[103]Finally, reliance was placed by Mr Baldwin in cross-examining both Mr Amos and Mr Conrad upon internal research carried out within FAGE UK in 1999 which, in its summary of “reasons for buying Total”, did not include authenticity or Greek origin at all. In fact, a section headed “Authentic Greek Yoghurt” concluded that 58% of more than 2000 respondents to the survey did think that Total’s authenticity was influential to their purchasing decision. More generally, the research concluded that:
“Total Greek yoghurt’s authenticity does not have a huge influence over purchasing decisions but is important when combined with the other elements mentioned above.”
[104]Taken as a whole, FAGE’s commissioned and internal market research presented mixed messages. On the one hand it certainly did not suggest a uniform consensus either among the researchers or their target consultees that Greek yoghurt was a class importantly distinct from Greek style yoghurt for the purpose of making buying decisions. On the other hand, the materials contain frequent references to the importance attributed by some at least of FAGE’s actual and potential customers to authenticity, by which it is reasonably apparent that both the researchers and their consultees meant that Greek yoghurt signified to them yoghurt made in Greece.[105]Finally, reference was made in cross-examination to some of the materials by which FAGE sought to educate its customers and others about the qualities of its product. Again, this did not appear to place its Greek origin high on its list of USPs, and suggested that the oral evidence of Mr Amos and Mr Conrad may in that respect to some extent have over-egged the pudding. Chobani’s Survey[106]The uncertainty created by the analysis of FAGE’s disclosure of its market research as to whether the mind of the yoghurt buying public was conscious of the distinction between Greek and Greek Style yoghurt made it all the more important that the survey conducted for the purpose of this case should provide a clear picture of the buying public’s perceptions, and all the more unfortunate that the ambiguities in Question 1 to which I have referred mean that it does not, or at least that it does not do so clearly. The evidence showed that approximately 50% of the adult UK population may be regarded as yoghurt eaters, in the sense that they do so at least once a fortnight. This equates to approximately 20 million adults in England and Wales.[107]Both Mr Malivoire and (although he was muddled in his evidence on this point) Mr Kelly concluded that an affirmative answer to Question 1 was likely to capture not merely Greek yoghurt eaters or even Greek Style yoghurt eaters, but yoghurt eaters generally, even though some may have taken a narrower approach to the meaning of the question. Doing the best I can, it seems to me that only a small number of affirmative respondents to Question 1 would have done so on the basis that they ate other plastic potted milk products such as sour cream and crème fraiche, but not yoghurt. The proportion of yoghurt eaters who might have answered no to Question 1 because they thought it was about a particular kind of yoghurt, rather than yoghurt generally, seems to me quite impossible to determine. Nonetheless, on any view, the constituency represented by those who answered yes to Question 1 must have been very much larger than the 7.5% or so of the yoghurt eating population who, judging from sales statistics, regularly eat Greek or Greek Style yoghurt. When extrapolating the survey sample to the yoghurt eating population, yoghurt eaters answering yes to Question 1 would represent many millions of the adult population of England and Wales.[108]The tabulated results of the survey (at paragraph 74 of Mr Kelly’s second witness statement) show that, treating those who answered question 1 in the affirmative as 100%, 52.7% then said that they knew where the Total product was made (although its place of manufacture was blanked out on the pot shown to them) and 33.8% correctly answered that it was made in Greece. If those percentages are applied to the yoghurt eating population, then those who thought that they knew that Total’s ‘authentic Greek yoghurt’ was made in Greece must still be numbered in the millions.[109]Perhaps more importantly, it is reasonable to suppose that, as between yoghurt eaters on the one hand and thick and creamy yoghurt eaters (i.e. Greek Style plus Greek) on the other hand, the proportion who would be sufficiently interested in this question to think that they knew the answer to its place of manufacture would be heavily populated by the latter rather than the former class. It would follow that the percentage of those actually eating and buying Greek yoghurt who may be supposed to know that it was manufactured in Greece is very much higher than the proportion of yoghurt eaters as a whole. Not only is the 33.8% who answered that it was made in Greece amply sufficient to accommodate all customers of both Greek and Greek Style yoghurt (who probably represent less than 10% of the yoghurt eating population generally), but it is reasonable to suppose that, being interested in and customers of thick and creamy yoghurt, it would be a matter much more within their focus than within the focus of yoghurt eaters generally.[110]The percentage of those to whom it mattered that the yoghurt in the sample Total pot was made in Greece was only 8.2%. As a proportion of yoghurt eaters generally that may seem low, but even then it would amount to hundreds of thousands of adults in England and Wales. But it is again reasonable to suppose that the constituency of yoghurt eaters thinking that it mattered that Total yoghurt was made in Greece would be heavily concentrated among the 2% or thereabouts of yoghurt eaters who habitually buy Greek yoghurt.[111]The result is in my judgment that the survey results are by no means inconsistent with a conclusion that 25 years’ consistent labelling by suppliers of Greek yoghurt under a convention which limited it to yoghurt made in Greece had by the time of the survey in December 2012 led to a widespread belief among buyers of Greek yoghurt (as defined by that convention) both that it came from Greece and that this mattered to them. The ambiguity in Question 1 of the survey means that its results by no means prove that conclusion, but they are consistent with it.

Conclusions on the facts

[112]The uniform adoption over 25 years by suppliers to the English market of a labelling convention which limits the description Greek yoghurt only to yoghurt made in Greece seems to me to raise a powerful inference that this convention was sufficient over time to incline a substantial proportion, and probably a clear majority, of the buyers of product described as Greek yoghurt to the same conclusion. That inference is in my view in no sense diminished by FAGE’s tendency (apparently shared by Asda) to describe that product as “authentic Greek yoghurt”. All that the word authentic does in that context is to underline the inference as to origin which would naturally flow from the use of the adjective Greek.[113]The market research materials and the survey, together with materials such as newspaper articles, certainly show that an understanding that Greek yoghurt comes from Greece is by no means as widely held among the public generally as the understanding that Champagne and Sherry both have territorial provenance, or that Swiss chocolate means chocolate made in Switzerland.[114]I am also persuaded that the attribution of the description Greek yoghurt only to thick and creamy yoghurt also means that the description conveys something more than mere territorial origin, in other words that a substantial proportion of the actual or potential buyers of Greek yoghurt do think that it is in some way special, by comparison for example with those who might think that French ball-bearings come from France and Italian pencils come from Italy.[115]It is impossible to do much more than speculate as to why that substantial proportion of the relevant public think that Greek yoghurt is special. Some may, as Mr Conrad thought, make a romantic association between Greek yoghurt and a Greek holiday. Some may think that Greeks use manufacturing methods that give it its special thick and creamy texture. Few would probably know how or why. The defendants’ survey suggests that a very small proportion (namely 3.4%) thought that Greek yoghurt necessarily came from Greek cows, and probably an even smaller proportion would think that Greek cows produced significantly more suitable milk for yoghurt than any other cows.[116]Again, a perception that there was something special about Greek yoghurt, less than fully matched for example by Greek style yoghurt, is in my view much less prevalent than the perception which has been held in other cases to exist in relation to Champagne, Sherry and Swiss chocolate. Nonetheless it is entertained in my view by a substantial proportion of the yoghurt eating population, running into hundreds of thousands of adults, and probably by a majority of those who are regular buyers of Greek yoghurt, 95% of which is produced by FAGE.

The Law

[117]Subject to one point, and to differences in emphasis, counsel were broadly ad idem as to the applicable legal principles. As Mr Baldwin put it, the law of passing-off is concerned with the protection of reputation and goodwill from misrepresentations made in the course of trade which cause damage. His summary is broadly derived from the well-known statement by Lord Diplock in Erven Warnink bv v J Townend & Sons Ltd [1979] AC 731, at 742 D-E, (the Advocaat case), abbreviated to three requirements by Lord Oliver in Reckitt & Colman Products Ltd v Borden Inc [1990] RPC 341, (the Jif lemon case), at 406:
“First, he must establish a goodwill or reputation attached to the goods or services which he supplies in the mind of the purchasing public by association with the identifying “get-up” (whether it consists simply of a brand name or a trade description, or the individual features of labelling or packaging) under which his particular goods or services are offered to the public, such that the get-up is recognised by the public as distinctive specifically of the plaintiff’s goods or services. Secondly, he must demonstrate a misrepresentation by the defendant to the public (whether or not intentional) leading or likely to lead the public to believe that goods or services offered by him are the goods or services of the plaintiff. Whether the public is aware of the plaintiff’s identity as the manufacturer or supplier of the goods or services is immaterial, as long as they are identified with a particular source which is in fact the plaintiff. For example, if the public is accustomed to rely upon a particular brand name in purchasing goods of a particular description, it matters not at all that there is little or no public awareness of the identity of the proprietor of the brand name. Thirdly, he must demonstrate that he suffers or, in a quia timet action that he is likely to suffer, damage by reason of the erroneous belief engendered by the defendant’s misrepresentation that the source of the defendant’s goods or services is the same as the source of those offered by the plaintiff.”
[118]Lord Diplock’s formulation was given in an extended passing-off case, that is where the goodwill is alleged to reside in a class of producers of a product sharing a common name or get up. Lord Oliver’s abbreviated three conditions were set out in a simple passing-off case. Almost all the argument in the present case has been directed to the question whether the first of Lord Oliver’s three requirements has been demonstrated by FAGE.[119]In the Advocaat case, Lord Fraser also formulated a list of five requirements, the first four of which amount to an extended analysis of Lord Oliver’s first requirement. They have been found to be of particular value where, as here, it is the first of Lord Oliver’s requirements that is primarily in issue. Lord Fraser put it as follows, at [1979] AC 731, 755 G- 756 A:
“It is essential for the plaintiff in a passing-off action to show at least the following facts: - (1) that his business consists of, or includes, selling in England a class of goods to which the particular trade name applies; (2) that the class of goods is clearly defined, and that in the minds of the public, or a section of the public, in England, the trade name distinguishes that class from other similar goods; (3) that because of the reputation of the goods, there is goodwill attached to the name; (4) that he, the plaintiff, as a member of the class of those who sell the goods, is the owner of goodwill in England which is of substantial value; (5) that he has suffered, or is really likely to suffer, substantial damage to his property in the goodwill by reason of the defendants selling goods which are falsely described by the trade name to which the goodwill is attached.”
[120]Both Lord Fraser and Lord Oliver emphasised that, for the claimant to demonstrate ownership of the requisite goodwill attached to the relevant trade name (or get up), the name must, in the public mind, be associated with a clearly defined class of goods, sufficiently distinguished from other similar goods by that name.[121]The line of celebrated extended passing-off cases, dealing with Champagne, Sherry, Whisky, Swiss chocolate and, most recently, Vodka have developed a detailed understanding of particular aspects of the meaning of this requirement that the trade name is associated with a distinctive class of goods. I shall mention those which are pertinent to the present case. Again, there was no real dispute about them between counsel.[122]The first is that where the relevant trade name is descriptive of a geographical region or location as the place of manufacture, the claimant will fail if he can establish no more than that. Something more is necessary. This requirement for something more is best expressed by Chadwick LJ in the Court of Appeal in the Chocosuisse case [1999] RPC 826 at 832:
“The words “Swiss chocolate” are, as the judge pointed out, [1998] R.P.C. 117, at page 129 line 31, descriptive in nature. They are clearly apt to describe chocolate made in Switzerland. But they are also apt to describe chocolate made to a Swiss recipe with Swiss expertise by a Swiss manufacturer. If the words are no more than descriptive – whether of the place of manufacture or of the identity of the manufacturer – they cannot found an action in passing-off. The judge identified the point, correctly in my view, in the following passage of his judgment, [1998] R.P.C. 117, at page 129 lines 31 to 36: “It is only if they [the words ‘Swiss chocolate’] are taken by a significant part of the public to be used in relation to and indicating a particular group of products having a discrete reputation as a group that a case of passing off can get off the ground. I have had to bear this in mind when assessing the evidence of what the words mean to members of the public. If they convey nothing more than their descriptive meaning the action must fail.”
There were, therefore, two questions to be addressed on this part of the case: (i) would the words “Swiss chocolate” have been taken by a significant section of the public in England at the relevant time to mean, and to mean only, chocolate made in Switzerland; and if so, (ii) did chocolate made in Switzerland have a discrete reputation, distinct from other chocolate, which the Swiss Chocolate Manufacturers were entitled to protect?” At first instance in the Chocosuisse case, Laddie J used, as examples of geographical descriptions importing nothing more than a place of manufacture, French ball-bearings or Italian pencils. In the present case, the question is whether Greek yoghurt means more in the public mind in England than merely Greece as its place of manufacture.[123]It is not necessary that the “something more” must consist of a reputation for higher quality or cachet. This was the central question in the appeal from the judgment of Arnold J in Diageo North America Inc v Intercontinental Brands (ICB) Ltd, (the Vodkat case). After a masterly summary of the extended passing-off cases, Arnold J rejected the supposed requirement to show a cachet, at paragraphs 30 to 35, as being contrary to those authorities. In the Court of Appeal [2011] RPC 110, at paragraph 29, Patten LJ said:
“But there is no legal requirement that the distinctiveness of the claimant’s mark should also be a badge of quality. Whether it generates goodwill in relation to the goods or services sold will inevitably be determined by the impact which they have on consumers. Doubtless the better the quality or the more fashionable they are, the more likely it is that the necessary reputation and goodwill will be acquired. But this factor is evidential in character and largely co-incidental. The law of passing-off is there to protect the unlawful appropriation of goodwill through misrepresentation. It is not there to guarantee to the general consumer the quality of what he buys. For that he must look elsewhere.”
Earlier, at paragraph 25, Patten LJ quoted with approval a passage from Professor Wadlow’s book The Law of Passing-off : Unfair Competition by Misrepresentation (3rd Edition), of which the following is an extract:
“For the misrepresentation to be a material one the descriptive or generic term must have a reasonably definite meaning and some attraction for the customer, or no one would ever rely on it and any misrepresentation would be immaterial. In other words, it must have some drawing power in its own right.”
[124]It is in my judgment not possible to state in positive terms the requirement that a trade name which is descriptive of geographical origin must have an effect which is more than purely geographical, beyond saying, like Professor Wadlow, that it must have some drawing power in its own right.[125]Mr Baldwin submitted (correctly) that it was a common feature of most of the extended passing-off cases about geographical descriptions that the place or country of origin imposed strict regulations as to the mode of manufacture of the product in question. The Champagne, Sherry and Swiss chocolate cases are good examples of that common feature, which is entirely lacking in the present case. Nonetheless it is in my judgment, like quality or cachet, largely coincidental. The fundamental question, to be ascertained by reference to the facts of each case, is whether the geographical trade name has a pulling power that brings in custom, so that reputation and goodwill can properly be said to be enjoyed by all producers within the class which use that name for their product.[126]It is clearly established that it is no part of the requirement to demonstrate goodwill in a trade name that the consumer must be shown to know what are in fact the manufacturing processes typical of the product in question. This is clearly demonstrated by the judgment of Laddie J in the Chocosuisse case, at pages 131 and 135-6. In the latter passage he said:
“The fact that the public have no clear idea of the characteristics of the goods which have the reputation is of little consequence. In the case of Champagne, no doubt many members of the public, who know of and rely on the reputation acquired by that designation, know nothing about double fermentation and do not know where the Champagne district of France is. Some may not even know that the wine with the reputation comes from France. This is irrelevant.”
[127]The point on which counsel differed sharply concerned the question whether the requisite perception that the relevant trading name denoted a distinctive class of product needed to be that of the public as a whole, or merely some section of it. Mr Baldwin submitted that if it were shown that, for example, 80% of the public believed that the trading name identified class A (e.g. yoghurt made in Greece) but 20% believed that it meant class B (e.g. yoghurt made anywhere but thickened by a straining method), then the requisite distinctive class could not be proved, and the claim would fail. By contrast, he accepted that if 80% of the public believed that the trading name denoted class A but that 20% did not think it denoted any particular class, then the claim might succeed. By contrast Mr Alexander submitted that all that needed to be shown was that a significant section of the public believed that the trading name denoted a sufficiently defined and distinctive class, with the requisite pulling power.[128]On this issue, I consider that Mr Alexander is correct. I do so both because it seems to me to be more in accordance with the authoritative dicta, to the limited extent that they address this point, and because I consider that his submission accords naturally with the underlying purpose of this requirement in the law of extended passing-off, namely a demonstration that valuable goodwill has become attached to the relevant trading name.[129]As to the dicta, the starting point is Lord Fraser’s requirement (2) at [1979] AC 731, 755 H:
“That the class of goods is clearly defined, and that in the minds of the public, or a section of the public, in England, the trade name distinguishes that class from other similar goods;”
The same “section of the public” test was applied at first instance, and approved by the Court of Appeal, in the Chocosuisse case.[130]In Marks & Spencer plc v Interflora Inc [2012] EWCA Civ 1501 Lewison LJ held that the requirement to show deception was satisfied if a substantial proportion of the public would likely to be deceived, even though a majority would not: see paragraphs 26 to 36, relying on dicta to that effect by the Court of Appeal in Neutrogena Corp v Golden Ltd [1996] RPC 473 and the Chocosuisse case in the Court of Appeal.[131]In one sense, as indeed Mr Baldwin submitted, the requirements to show goodwill and deception are separate and distinct, in all the classic formulations of the tort of passing-off. Nonetheless it would seem strange indeed if a claimant could succeed by showing that a trade name generated pulling power in the minds of (say) 80% of the relevant public even though less than half of them would be deceived by the defendant’s use of the same name, whereas a claimant who could only show that his trade name generated goodwill in (say) 40% of the public would fail, even though all of that 40% would be deceived by the defendant’s use of the same name.[132]There are in my judgment no hard and fast rules at either stage. The two questions are, in their simplest form:(1) whether the claimant has built up a substantial goodwill attached to the trade name by which he (and in an extended passing-off case, others) have described their product; and(2) whether the defendant’s use of the same or a similar name causes or threatens substantial damage to that goodwill. Both questions are matters of fact and degree, and yield to no precise formulae. Analysis

Goodwill

[133]I have concluded that, in fact, a substantial proportion of those who buy Greek yoghurt in the UK (probably well in excess of 50% of all Greek yoghurt buyers) think that it is made in Greece, and that the proportion of those Greek yoghurt buyers to whom it matters is substantial, even though it is a modest proportion of yoghurt eaters as a whole. It follows that, in my judgment, FAGE has succeeded in demonstrating that substantial goodwill has become attached to the use of the phrase Greek yoghurt, in the sense that it creates pulling power, rather than merely denotes a geographical origin to which buyers are indifferent.[134]To my mind the best evidence of the subsistence of goodwill in the phrase Greek yoghurt lies first in the fact that a labelling convention which respects its Greek place of manufacture as being relevant to customers has been uniformly observed by yoghurt producers in the UK market for over 25 years, secondly in unanimity of the trade witnesses in that respect and thirdly in the fact that, on average, it commands a premium price.[135]The price point is of particular significance in addressing the question whether FAGE’s goodwill attaches to its own brand name Total, or to its use of the Greek yoghurt description, or to a combination of both. When supermarkets sell own label Greek yoghurt and Greek Style yoghurt, the evidence clearly shows that they obtain a higher price for their Greek yoghurt. That is in no sense attributable to the use of a different brand name, let alone to FAGE’s own brand name. Misrepresentation[136]As for misrepresentation, it seems to me clear that, if a sufficient goodwill is shown to be attached to the phrase Greek yoghurt among customers who believe that it is made in Greece, and that this matters to them, then the use of Greek yoghurt to describe yoghurt not made in Greece plainly involves a material misrepresentation. It is a misrepresentation to all those who think that Greek yoghurt is made in Greece. It is a material misrepresentation to those who think that, and consider that it matters to them.[137]For this purpose it is nothing to the point that Chobani’s yoghurt may be made by the same straining method as that commonly used for the production of Greek yoghurt. This was treated as immaterial both in the Champagne case itself and in the Chocosuisse case. At first instance, Laddie J said at [1998] RPC 117, 128:
“Thus the ability of the Champagne houses to sue successfully for passing-off would not be destroyed if, in fact, other manufacturers in other areas of the world produced a sparkling wine equal in quality and indistinguishable in taste from any one of the numerous wines accurately sold as Champagne.”
In the Court of Appeal, it was sufficient that Cadbury’s Swiss Chaletchocolate was not made in Switzerland, regardless of any comparison between the method of manufacture of Cadbury’s product and that made in Switzerland under the relevant regulatory regime.[138]For reasons already given, 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 that 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. The evidence of Mrs Prior that even a self-confessed label freak like her did not see the small print statement of origin until after she had brought her pot home, and indeed eaten its contents, puts that beyond serious doubt. The contrary was not suggested by counsel for Chobani. Damage[139]The requirement to show actual or threatened damage in a passing-off action may take two forms. The first is loss of sales. The second is erosion of the distinctiveness of the trade name sought to be protected: see per Lord Diplock in the Advocaat case at [1979] AC 731, 745, and per Laddie J in the Chocosuisse case at [1998] RPC 117, 143.[140]In my judgment the present case is a typical example of the second of those types of loss. Chobani’s launch of its product in the UK market was restrained by injunction before any evidence of loss of sales could have been expected to have accrued. Nonetheless the loss of distinctiveness in the description Greek yoghurt as meaning (inter alia) yoghurt made in Greece occasioned by the introduction into the market of Greek yoghurt made in the USA is obvious. Once a Greek yoghurt consumer discovers, like Mrs Prior, that a yoghurt sold as Greek yoghurt can in fact 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.

Conclusion on the claim

[141]For those reasons, FAGE’s claim to restrain Chobani from passing-off its American made yoghurt in England and Wales under the description Greek yoghurt succeeds, and a permanent injunction must be granted to that effect.

The Counterclaim

[142]The counterclaim arises entirely out of the letter dated 14 September 2012 to Camden Trading Standards from FAGE’s solicitors. The alleged falsehoods appear on its final page, which it is convenient to recite in full:
“Regulation EC 854/2004 We have noted that the Chobani products appear not to be carrying any mark or stamp indicating that they have been produced in a properly inspected manufacturing facility. Article 12, Chapter 1, Regulation (EC) 854/2004 states that (subject to limited exemptions) unless an establishment has been inspected by the competent authority of the exporting non-EU country which report has confirmed that it complies with the provisions of EU food law, it should not be imported into the EU. We have searched the most recent US list for diary producers (which is available at https:/webgate.ec.europa.eu/sanco/traces/output/US/MMP US en.pdf) and cannot find a listing for a Chobani-named facility. Bovine Growth Hormone We also wish to alert you to the fact that Chobani’s products are manufactured in the US. The US does not at present prohibit the use of bovine somatotropin (bovine growth hormone) in dairy cattle. As there is no way of which FAGE is aware that finished yoghurt products can be tested for the presence of the hormone, so Chobani cannot confirm to EU customers that its products are free of milk from dairy cattle treated with such hormones. This should be clearly stated on the Chobani product labelling and yet is absent. Request for Action by Trading Standards FAGE requests that as the primary Trading Standards Unit, covering the registered address of Chobani, you require Chobani to withdraw its products from the market while you are investigating, or until it relabels its products in such a way that they conform to not only the convention used by other products, but with the requirements of the Regulation (EC) 854/2004, Food Labelling Regulations 1996 and the Consumer Protection from Unfair Trading Regulations 2008.”
Bovine Growth Hormone

Request for Action by Trading Standards

[143]The first sentence of the paragraph headed Regulation (EC) 854/2004 was untrue. Under the ‘made in the USA’ legend on the back of the Chobani pot used for its launch into the UK market appears the number 1315327. As FAGE now accept, that is the distinguishing number of a food processing facility in the USA which had been owned and operated by Chobani under its previous name Agro-Farma Inc, and which was listed as such under that name.[144]In making their own enquiries FAGE’s solicitors had searched the relevant list for a food processing facility under the name Chobani and had not found that number. Thus, save for the mis-statement of the regulation in question, which should have been 853/2004, the remainder of the first paragraph on the final page of the 14 September was correct.[145]Chobani’s case was that since FAGE knew its earlier trading name of Agro-Farma Inc, it or its solicitors ought to have conducted a sufficiently thorough search (which would have identified as correct the number on its pots as indicating the relevant facility), and that it was reckless for FAGE to make the untruthful assertion to the contrary, in a letter seeking the immediate withdrawal of Chobani’s products from the English market pending investigation.[146]In my judgment all that has been shown is that the mistake was, at worst, negligent but not reckless. Accordingly there is no basis for Chobani’s allegation that the undoubted falsehood was malicious.[147]The factual background to the allegation about Bovine Growth Hormone is a little more complicated. It is common ground that, unlike the member states of the EU, the USA does not prohibit the use of Bovine Growth Hormone in dairy cattle. Both FAGE and Chobani seek to ensure, as far as possible, that their yoghurt made in the USA uses milk from cattle on farms where Bovine Growth Hormone is not administered. Since there is no regulatory regime in the USA (by contrast with the EU) by which farmers are prohibited from doing so, FAGE and Chobani are therefore dependent upon the honesty of their suppliers’ declarations of non-use of Bovine Growth Hormone, not least because, as stated in the 14 September letter, there is no way in which its presence can be detected in milk or milk products by any process of testing.[148]Mr McConeghy’s evidence, which I accept, was that Chobani’s practice in the USA was to obtain affidavits from the farmers from whom it sourced its milk, to the effect that their herds were free of Bovine Growth Hormone, and to rely upon intermediaries in the supply chain (usually a farming co-operative as wholesaler) to conduct occasional tests on the herds for the presence or absence of Bovine Growth Hormone in the cows, where it can satisfactorily be tested. Chobani pays a premium to obtain milk from cattle not treated with Bovine Growth Hormone.[149]Both Chobani and FAGE make reference in their marketing of yoghurt in the USA to their inability to be sure, by testing, that milk or milk products are free from Bovine Growth Hormone. The gist of FAGE’s complaint under this heading to Camden Trading Standards was that no similar qualification was to be found in Chobani’s materials for marketing its US produced yoghurt in the UK, a market in which, due to the general ban on the use of Bovine Growth Hormone within the EU, buyers may be supposed to be ignorant even of the slightest risk of its presence in yoghurt made in the USA.[150]I have not been persuaded that this second allegation in the 14 September letter was false, still less malicious. I accept the evidence of Mr Filippou that FAGE were pursuing a genuinely held view that yoghurt made from American milk and marketed in the EU needed to be accompanied by a cautionary statement as to the inability of the producer to satisfy itself by testing that it was free of Bovine Growth Hormone, and that this was what was meant by the phrase “so Chobani cannot confirm to EU customers that its products are free of milk from dairy cattle treated with such hormones”.[151]Be that as it may, I am also satisfied that neither of the allegations of which Chobani complained, whether false or malicious, caused or were calculated to cause damage. Camden Trading Standards did not accede to FAGE’s invitation to direct the removal of Chobani’s products from supermarket shelves without first investigating the matter and no such direction has yet been made. Conduct is only calculated to cause damage within the meaning of Section 3(1) of the Defamation Act 1952 (which applies to malicious falsehood) if damage is, in the ordinary course of events, viewed objectively, likely to be caused by the conduct of which complaint is made.[152]In the context of a complaint to a regulatory authority, I consider it unlikely, objectively speaking, that the regulator would take steps of a kind likely to cause damage to a business without first conducting some investigation of the matter alleged, and seeking for that purpose the observations of the party against whom the allegation was made.[153]For those reasons the counterclaim fails and must be dismissed.

Cited in 4 later judgments