Danone fails to appeal Yoplait's High Court injunction in low fat yoghurt row

Irish Examiner

3 hours ago

A row over low fat yoghurt between two multimillion global companies has come before the Irish courts.
In the latest round, the Court of Appeal has upheld an injunction granted three months ago to Yoplait Ireland Ltd and ordered that the Irish subsidiary of Danone be restrained from passing off certain Skyr products on the Irish market as those of Yoplait pending the determination of the proceedings.
Yoplait Ireland Ltd is suing Nutricia Ireland Ltd, the Irish subsidiary of Danone, over allegedly "passing off" the product. At issue are certain Skyr yoghurts which are made using a traditional Icelandic recipe and are low in fat and high in protein.
Yoplait has previously claimed that the "get up", or packaging, of the Danone Skyr "Icelandic style" yoghurt is so similar to the Yoplait "Skyr" product that consumers are likely to be confused when shopping.
It claims Danone is piggybacking on the goodwill it has built up to sell its product and is allegedly engaging in an unfair competitive tactic in doing so.
Nutricia Ireland had appealed a decision by the High Court last May granting the injunction restraining Danone.
Court of Appeal ruling
Giving the judgement of the Court of Appeal, Ms Justice Niamh Hyland said she rejected the appeal of Danone and upheld the High Court decision to grant an injunction to Yoplait, but in modified terms.
'I am conscious that Danone is being denied entry to a market, that on its case it is fully entitled to enter. If it transpires that it is correct, competition will have been stifled,' the judge said.
She said in the circumstances there was an obligation upon Yoplait to expedite the trial of the action and to make an application to the judge in charge of the Commercial Court list on the matter.
Ms Justice Hyland said Danone had failed to establish material error in the High Court judge's conclusion that the relevant customer was one shopping in Ireland for Skyr yoghurt rather than one shopping for white strained yoghurts, as Danone contended.
The judge further rejected Danone's argument that the trial judge erred in only considering the position on the parties on the Irish market and not their activities in other markets and she also rejected Danone's argument that Yoplait delayed in bringing the proceedings.
However, Ms Justice Hyland ruled that the injunction order by the High Court which restrained Danone not just from passing off the goods, the subject of the proceedings, but from placing on the market confusingly similar Skyr products was 'likely to bring about an injustice'.
The judge upheld Danone's appeal in that regard and modified the order to restrain Danone from passing off their Skyr products as those of Yoplait's Skyr's products, pending the hearing of the case.
Case background
Setting out the background to the case, Ms Justice Hyland said Yoplait Ireland had launched its Skyr product in September 2022 which it sold in packaging featuring a blue and white colour scheme with mountain imagery.
She said last year Yoplait updated its it logo packaging but retained the overall get up. Yoplait, she said, asserts that its Skyr products are the leading offering in the Irish market with over 430,000 of the 850g pots sold last year.
Nutricia Ireland, she said, first launched Skyr products - including yoghurt with blue and white packaging - in France in 2018 with redesigned packaging introduced to Belgium and Italy last year and an intention to launch into the Irish market in May of this year.
Yoplait wrote to Danone last March stating that Danone's Skyr products were confusingly similar to their own and seeking undertaking from Danone not to launch the products in Ireland.
Danone declined to provide such undertaking and disputed the claim of passing off and asserted that its packaging is consistent with its established branding and trademark.