High Court allows survey evidence in Greek yoghurt passing-off case

In Fage UK Ltd v Chobani UK Ltd ([2012] EWHC 3755 (Ch), the High Court of England and Wales has allowed Chobani’s request to adduce survey evidence on consumer perceptions on the attributes of Greek yoghurt, finding that the evidence went to the heart of Fage’s passing-off claim.

Fage is a producer of a brand of yoghurt sold as Total Greek Yoghurt. Chobani is a producer of a brand of yoghurt sold as Chobani Greek Yoghurt, which is made in the United States and was first introduced into the United Kingdom in September 2012.

Fage brought passing-off proceedings against Chobani, arguing that only yoghurt made in Greece from Greek milk could be called Greek yoghurt, and that the goodwill in the name 'Greek yoghurt' would be damaged by Chobani’s sale of a product that was falsely described by that name because it was made in the United States. Chobani countered that 'Greek yoghurt' connoted a yoghurt with a particular consistency and taste rather than a product made in Greece from Greek milk.

Chobani conducted a pilot survey on consumer perceptions on the attributes of Greek yoghurt and applied for permission to adduce a full survey and evidence from respondents to that survey.

Referring to the new guidelines on survey evidence expounded in Marks and Spencer PLC v Interflora Inc ([2012] EWCA Civ 1501), which reversed the practice of allowing such evidence unless the judge was satisfied that it would be valueless, the High Court commented that the guidelines applied generally to both passing-off and trademark infringement cases. Finding that the issue as to whether a substantial proportion of consumers or potential consumers of Greek yoghurt would regard a fundamental attribute of 'Greek yoghurt' as being that the yoghurt must have been made in Greece with Greek milk was at the heart of the action, the court allowed Chobani’s request to adduce survey evidence.

Whilst the court expressed some reservations about the survey, it did not accept Fage’s argument that the sample size was insufficient. A representative sample of 1,000 persons could be sufficient, provided it was calculated and likely to be truly representative of a relevant cross-section of the public and approached in compliance with what are often referred to as the 'Whitford guidelines'.

The court rejected Fage’s argument that the general approach adopted by Chobani and the specific questions in the survey were subject to such serious flaws as to undermine reliability and evidential value. Whilst it accepted that there was some force in the criticisms and room for improvement, it noted that survey evidence was notoriously difficult to design and that all surveys were imperfect. In the court’s view, however, the results of a survey designed and administered properly could be of real use in guiding the court as to the likely view of a substantial proportion of relevant consumers.

On balance, the court concluded that, even in light of qualifications and criticisms, the replies in the pilot survey suggested that a full survey could assist in establishing whether a substantial proportion of consumers would believe that Greek Yoghurt was a badge indicating that the product to which the expression related was made in Greece.

The court considered that the cost estimate of £10,000 for a marketing company to conduct a survey was relatively modest and likely to be exceeded. The estimate did not include Fage’s consequential costs or the costs of Chobani engaging an expert to defend the survey and any subsequent witness collection programme (if allowed). Granting permission for Chobani to conduct the full survey, the judge noted that the associated cost was at Chobani’s own risk. The judge also granted Chobani liberty to apply for any modification of the survey at its own risk as to costs. Chobani was free to amend the survey without further permission to integrate any amendments adumbrated in the judgment.

The court said that it would reconsider the question of whether or not to permit the results of the survey to be adduced when considering what evidence was to be permitted to be adduced from respondents to the survey.

The fact that Chobani was allowed to proceed with a survey in this case is interesting. The court acknowledged that it was departing to some degree from the usual course of action prescribed in relation to survey evidence following Marks and Spencer v Interflora, noting that, but for the time pressure of a speedy trial, it would have been minded to decline the survey and ask for a further and better survey to be produced.

Désirée Fields, McDermott Will & Emery UK LLP, London