Great beginnings – the importance of distinctive origin

Cornish clotted cream

A recent dispute over an amendment to the Protected Designation of Origin ('PDO') specification for Cornish clotted cream highlights that the description under which a product is registered is of great importance to producers, as this defines the unique elements of a product. The EU Protected Food Name ('PFN') Scheme provides a system for the protection of food names on a geographical or traditional recipe basis, throughout the EU. It recognises regional and traditional foods whose authenticity and origin can be guaranteed. This accreditation therefore has a positive impact on consumer awareness of a product across the EU and the demand for exports. Products are awarded one of three marks: Protected Designation of Origin ('PDO'), Protected Geographical Indication ('PGI') and Traditional Speciality Guaranteed ('TSG'). 

In January 2014, Trewithen Dairy made an application to Defra to amend the PDO specification for Cornish clotted cream to recognise that it could be manufactured for supply in bulk with the traditional golden crust dispersed throughout the product. It filed the application as a result of consultation with other Cornish clotted cream producers and stated that its aim was to ensure the PDO was 'clear and robust enough to adequately protect clotted cream's Cornish heritage whilst recognising the growing market of the product'.

Rodda's objected immediately on the basis that this would 'alter the distinctive characteristic of Cornish clotted cream' and authorise production methods which would contravene the requirement of 'authentic and traditional' methods championed by the PFN scheme.

The outcome of this dispute is still unknown, interested parties were asked to notify Defra of their intention to comment or object by 13 January 2013 and these must be submitted by 10 March 2014.  However, it is clear that if the PDO specification is not amended, it could have a significant impact on the bulk production methods used by Cornish clotted cream makers going forward.

Greek yoghurt

'Greek' yoghurt is another dairy product that has been under the legal microscope recently. The Court of Appeal announced on 28 January 2014 that 'Greek' yoghurt had to be made in Greece, despite the yoghurt being refused PDO status. This judgment was a result of an on-going court battle between Fage (who produces 'Total Greek Yoghurt') and Chobani.

Chobani, a leading US yoghurt producer, entered the UK market with its 'Greek' yoghurt in 2012. Fage successfully issued an injunction against the company for extended passing off, on the basis that the yoghurt was not actually made in Greece. Chobani stated that 'Greek' yoghurt referred to the style rather than origin of the yoghurt, arguing there was no PDO status attached to the product. On appeal, the High Court decided that the use of the term 'Greek' was a material misrepresentation of the place of manufacture and sufficient goodwill had attached to it in the marketplace. This decision has now been confirmed by the Court of Appeal, although Chobani has indicated its intention to appeal to the Supreme Court. French company Danone, which echoed Chobani's argument privately settled with Fage as a result of the case.

Product protection

Although these examples pivot on different issues, they both demonstrate the importance placed on protecting products whose authenticity is linked to a place of origin. The Cornish example highlights the significance of the traditional and distinctive characteristics of a product, which engender consumer trust in it and ultimately result in its success. The Greek example demonstrates that a description can become distinctive in the minds of consumers and be subject to protection by the courts, despite PDO status having been refused. Market perception is crucial to determining whether a producer can successfully claim such protection against its competitors.

For more information, please contact David Thompson, Head of Food and Drink, Michelmores LLP on 01392 687656 or at david.thompson@michelmores.com.