Yoplait is seeking a High Court injunction over a rival’s plans for an Irish launch next week of an allegedly confusingly similar product to its Skyr natural yoghurt.
Yoplait Ireland Ltd is suing Nutricia Ireland Ltd, the Irish subsidiary of Danone, over alleged “passing off” the product.
Yoplait claims 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.
Yoplait claims Danone is piggybacking on the goodwill it has built up in its product to sell its product and engaging in an unfair competitive tactic in doing so.
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On Tuesday, Yoplait sought an injunction, pending full hearing of its passing-off claim, preventing Nutricia from launching its Danone product with the intended similar get-up, which is already available in the UK market.
Nutricia denies the claims and opposes the injunction application.
The case came before Mr Justice Max Barrett, who admitted the case to the court’s competition list on consent between the parties.
The judge said he would give his decision on Friday.
Opening the injunction application, Kelley Smith SC, for Yoplait, said the defendant intends to launch in Ireland on May 6th with what is a “confusingly similar get-up”.
Both products are marketed as zero fat, high protein, low or no sugar with low calorie content based on an Icelandic-style yoghurt recipe.
Yoplait launched its Skyr in 2022 and is the leading supplier of the product in the Irish market, counsel said. Yoplait has a “significant mental” and “strong physical” availability among consumers, she said.
Danone has had a Skyr product in France for a number of years but the packaging was distinctly different from the Yoplait Skyr, she said.
When it launched in the UK in February last, the Danone product was packaged in a similar style to the Yoplait product, using a similar distinctive blue colour and a white mountain or iceberg, she said. The size of the tub containers used by both are very similar also, she said.
Surveys have shown consumers typically spend five seconds or less on choosing a product and they rely on colours and layouts to make their choice, she said.
Michael Cush SC, for the defendant, argued Yoplait failed to meet the requirements for an injunction including in relation a number of factual matters.
These included that Yoplait had withdrawn its challenge to the bottle version of the Danone product and was now only disputing the get-up of the tubs.
There was an absence of any evidence of confusion among consumers other than reference to the existence of the similar Danone Skyr product in Belgium which has been on the market since last October, he said.
Counsel said the question must be asked as to why this issue had not been raised in Belgium since October. The court heard Yoplait had said it would bring proceedings in that country.
There was also an absence of contradictory expert evidence from Yoplait in relation to Nutricia’s expert evidence that the risk of confusion was improbable, he said.
A survey of consumers carried out by Yoplait did not advance its case at all, he said.
There were also significant differences in relation to the packaging including darker blue on Yoplait than Danone, shape of the larger tubs, lettering and graphics, he said.
