The trouble with extempore judgments is that, like autumn leaves dancing in the breeze, they leave few traces behind them. Last week's decision of Mr Justice Briggs in Fage UK Ltd and another v Chobani UK Ltd and another, in the Chancery Division of the High Court for England and Wales is a good example. Were it not for the fact that some bright soul was there in court last Thursday to record it, at least in note form, for the very handy Lawtel subscription service, we might never have known of its existence.
Mr Justice Briggs is not a member of that close-knit family of specialist intellectual property judges who collectively constitute the Patents Court for England and Wales, but he does occasionally hear IP matters. By sheer coincidence, he presided over an action in 2006 between Sky and Reynolds, who were both parties to the case on which the IPKat posted this note last night. Briggs J has also had some experience of applications for interim injunctive relief, since he presided over Riemann v Lino Care (P20 v C20 sunblocks), where he granted the relief sought where both parties faced the prospect of irreparable harm but one party's irreparable harm was greater than the other. But what view did he take with regard to a substance that was even thicker and creamier than sunblock?
|Down at the docks, the Kustoms |
Kats prepare to repel alien
yoghurt cultures ...
Weighing up the positions of both parties, Briggs J then assessed that the risks of injustice were greater for Fage if no interim injunction were granted than for Chobani if it were, and that it would be easier to calculate the damage suffered by Chobani if Fage failed at trial. In any event, any injustice could be mitigated by delaying the injunction for long enough to give Chobani time to relabel its products without disruption to sales and to ensure products were then advertised and promoted within the terms of the injunction.
What about Chobani's offer to amend its current packaging merely by including the words "made in the USA" where the product was also labelled "Greek yoghurt"? No, said the judge, this simply would not do. If Fage succeeded in establishing that a specific attribute of "Greek Yoghurt" was that products so labelled were made in Greece, that amendment would not have met the essence of Fage's case and would continue to inflict loss till trial.
Taking everything into account, the judge considered it was appropriate to grant the injunction but to suspend it for five weeks, which would be long enough for Chobani to relabel, re-advertise and resupply its product. In the event he didn't need to do so, since Chobani was prepared to give undertakings of equivalent effect: its "Greek strained yoghurt" product is expected on British shelves by 1 December, according to Ekathimerini.com.
The IPKat can't help wondering about the ecological impact of importing yoghurt -- a relatively heavy, low-cost product that must be kept refrigerated and generally looked after -- across the Atlantic for consumption in Europe. He keeps hearing people talk of the environmental impact of flying cut flowers to Europe from Ecuador or beans and berries from various parts of Africa. Do the objections only arise when the country of origin is in the developing world?
Merpel, having marvelled at the extraordinary and successful efforts made by the Greeks to persuade the European Commission and ultimately the Court of Justice that Feta cheese was a Greek product rather than a generic term for cheese mainly made in Denmark and Germany, fully expects the Greek government to press for geographical indication protection for the term "Greek Yoghurt" rather than leave it to private litigants to preserve the sanctity of the term.
Greek v regular yoghurt: which is the more healthful?
Greek yoghurt fetish here
Yoghurt culture here