Fage UK Ltd & Anor v Chobani UK Limited & Anor

Permission to adduce survey evidence should be granted only where the evidence is likely to have real value and that value justifies the cost. Reliability is an important consideration. In a passing off case, the court must also consider the issue to which the survey is directed. Where the survey’s value cannot fairly be assessed before trial, and the additional cost and time are proportionate, the court may permit the evidence to proceed while leaving relevance and weight to the trial judge. The approach is fact-sensitive and may differ from the stricter position commonly applicable to surveys in trade mark cases.

The defendants sought permission to adduce a full survey and related expert evidence at the forthcoming trial. The survey concerned whether the description “Greek yogurt” necessarily indicated that the product was made in Greece, an issue relevant to the claimants’ passing off case.

The application followed an earlier permission to conduct a pilot survey at the defendants’ own risk as to costs. The central question was whether the survey results and expert evidence should be admitted before the court could assess their value conclusively.

1. The court applied the two-stage approach stated by Lewison LJ in Marks & Spencer PLC v Interflora Inc: first, permission depends on whether the evidence is likely to be of real value, with its reliability being important; secondly, the value of the evidence must justify its cost through a cost-benefit analysis. In trade mark cases concerning ordinary consumer goods or services, those criteria will usually be satisfied only in a special or unusual case.
2. The present case was a passing off action. The survey was directed to whether “Greek yogurt” had distinctive character, including an indication that the product was made in Greece. The trade mark context of the guidance therefore required appropriate consideration of the different issue before the court.
3. At the interlocutory stage it was impossible to determine whether the survey would have substantial or determinative weight. The court nevertheless considered that the imminent six-day trial could accommodate the evidence, and that the additional costs and time were not sufficiently burdensome to justify excluding it.
4. Permission was granted for the survey evidence and consequential expert evidence, both in support and criticism, to be adduced at trial. The trial judge was left to determine its relevance and weight. The evidence proceeded at the defendants’ risk as to costs, with any separate costs consequences left to the trial judge.