Fage UK Ltd & Anor v Chobani UK Ltd & Anor [2012] EWHC 3755 (Ch) (11 December 2012)

Fage UK Ltd & Anor v Chobani UK Ltd & Anor [2012] EWHC 3755 (Ch) (11 December 2012)

Permission is granted to the Defendants to proceed to a full survey at their own risk as to costs, as the survey may provide useful evidence on a central issue in the passing off claim, but the reliability and value of the survey remain subject to further consideration, especially in light of expert criticisms and the need for possible modifications.

Citation
[2012] EWHC 3755 (Ch)
Parties
First Claimant: FAGE UK LIMITED; Second Claimant/part20 Defendant: FAGE DAIRY IINDUSTRY S. A.; First Defendant/ Part 20 Claimant: CHOBANI UK LIMITED; Second Defendant: CHOBANI INC
Jurisdiction
England and Wales
Judgment Date
11 December 2012
Procedural Posture
Interlocutory Application in Passing Off Action / Application for Permission to Adduce Survey Evidence Prior to Trial
Outcome
Application granted in part; permission to conduct full survey granted, decision on admissibility of survey results and evidence from respondents deferred.
Legal Topics
Passing Off, Survey Evidence, Admissibility of Evidence, Cost/benefit Analysis, Expert Evidence
Intellectual Property Civil Procedure Passing Off Survey Evidence Admissibility of Evidence Cost/benefit Analysis Expert Evidence

Case Brief

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Parties

FAGE UK LIMITED

First Claimant

FAGE DAIRY IINDUSTRY S. A.

Second Claimant/part20 Defendant

CHOBANI UK LIMITED

First Defendant/ Part 20 Claimant

CHOBANI INC

Second Defendant

Procedural Posture

Interlocutory Application in Passing Off Action / Application for Permission to Adduce Survey Evidence Prior to Trial

Legal Issues

  1. 1 Whether the Defendants should be permitted to adduce further survey evidence and evidence from survey respondents in a passing off action
  2. 2 Whether the proposed survey methodology is sufficiently reliable and valuable to justify the costs

Ratio Decidendi

Permission is granted to the Defendants to proceed to a full survey at their own risk as to costs, as the survey may provide useful evidence on a central issue in the passing off claim, but the reliability and value of the survey remain subject to further consideration, especially in light of expert criticisms and the need for possible modifications.

Court Disposition

Application granted in part; permission to conduct full survey granted, decision on admissibility of survey results and evidence from respondents deferred.

Orders

  • Defendants permitted to proceed to a full survey at their own risk as to costs.
  • Defendants may apply to modify the survey with expert input by 20 December 2012.