If public surveys are not in vogue, trade practice can still be a critical factor in establishing your case.
In the same week, the Court of Appeal also confirmed in Fage UK Ltd & another v Chobani UK Ltd & another that the description of a product as “Greek Yoghurt” (as opposed to “Greek style Yoghurt”) if not made in Greece by a traditional straining technique, delivering a thick creamy effect, constituted an act of passing off actionable by traditional Greek yoghurt makers.
The manufacturers of such traditionally produced yoghurts in Greece had proved to the satisfaction of the first instance judge that the term Greek yoghurt was recognised as a distinct or special class of goods and not merely as an indication of geographical origin and as such attracted goodwill which they, as a member of that special class of producer, were entitled to protect. Survey evidence was admitted (a rarity, see above) to establish that more than 50% of the British public thought of the term in this way but the really persuasive evidence was that UK thick yoghurt producers themselves had avoided the term in favour of Greek style yoghurt for more than 25 years and that trade witnesses unanimously supported the practice or unwritten “labelling convention”, along with the premium price genuine Greek yoghurt was able to command over Greek style Yoghurt.
The case reflects the usefulness of gathering evidence from the trade as to actual market conditions; and that trade witnesses still have a vital role to play in trade mark and passing off cases provided that they confine themselves to fact and not speculation. The case may also suggest that if you want to stop such a designation becoming protected, you start using it generically on your own similar products very quickly, before it can develop a goodwill.