Tag Archives: Trade Related Aspects of Intellectual Property Rights

In the Washington Post, the morning newspaper of choice for America (at https://www.washingtonpost.com/news/food/wp/2017/08/11/as-greek-yogurt-keeps-proliferating-greece-is-getting-protective/), we see an article on yogurt, Maura Judkis shows us the new way to exploit Parmesan, this is by making yogurt and calling it Greek! With “The Ministry of Agriculture has assembled a group that plans to apply to register “Greek yogurt” in the European Union Register as a term with a protected geographical indication (PGI) or protected designation of origin (PDO)“. In this my initial question would be, ‘Why was this not done before?‘

Greece needs all the value it can get and Greek yogurt is apparently a big one. I love the stuff, but even I was a bit surprised to see the result with “Chobani saw its sales go from just over $3 million to more than $1.1 billion in its first five years“. So the fact that Chobani is not Greek is not in Greece and owned by a Kurd named Hamdi Ulukaya did not raise flags? I reckon this is one smart cookie; he bought the dispensed building from Kraft and turned it into a goldmine. So is Hamdi in a tough spot? I reckon he is. In his defence he is applying the Greek method of making Greek yogurt, so he has validity in his product, unlike the Czech version, which was taken to court and got scolded. Now, he is the part that is in debate. With “Using the term ‘Greek yogurt’ for products produced outside Greece would deceive consumers and would create unfair competition in the E.U. market” we see a valid case. Even as Parmesan is clearly an Italian product and such should be protected, Chobani finds itself in a similar predicament, or do they?

You see, the origin of Greek yogurt is still at times an issue. Even as we accept ‘Yogurt is known from ancient times , since there are reports from the historian Herodotus in 5th century B.C. and the famous doctor Galen, 2nd century A.D. There are also references to Indo culture that present yogurt with honey as the food of the gods‘

As I look at some of the historic facts, we need to ask questions, because Herodotus was born in Halicarnassus, which was in fact Persian. Some of the historical parts are a little sketchy, yet of that given and from the fact that he had travelled the ‘then’ known world. Where exactly did it come from and was he calling it Greek Yogurt, because he was Greek? In addition, was the art of straining yogurt limited to Greece?

So although Greece clearly has a case trying to protect Greek Yogurt, is this the trap for the product? So when we look at Article 22 of trips, (at https://www.wto.org/english/docs_e/legal_e/27-trips_04b_e.htm) we see:

Protection of Geographical Indications

1. Geographical indications are, for the purposes of this Agreement, indications which identify a good as originating in the territory of a Member, or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin.
2. In respect of geographical indications, Members shall provide the legal means for interested parties to prevent:

(a) the use of any means in the designation or presentation of a good that indicates or suggests that the good in question originates in a geographical area other than the true place of origin in a manner which misleads the public as to the geographical origin of the good;

(b) any use which constitutes an act of unfair competition within the meaning of Article 10bis of the Paris Convention (1967).

So here we see the protection that Greek Yogurt has or should already have, and that is now the issue of Chobani. In addition, the Washington Post gives me something weird. With “But those rules won’t apply in the United States, where makers are free to label their yogurt as Greek (and where the distance from Greece makes consumer confusion less likely). There are dozens of “Greek” yogurts in grocery stores, from popular brands like Chobani, Yoplait, Dannon and Fage (a Greek company)“, which is an issue, because as a signatory of the WTO, the US should be at the top of enforcing parts of this. Yet with the opposing defence of ‘the distance from Greece makes consumer confusion less likely‘ we see another part of implied American exploitation. It is seen in a paper by Peter Drahos titled ‘Developing Countries and International Intellectual Property Standard-setting‘ (at http://www.anu.edu.au/fellows/pdrahos/reports/pdfs/UKCommIPRS.pdf)

On page 6 we see “For example, a number of corporations from the US, Europe and Japan claiming to represent the international business community released a document in 1989 that indicated strong support for a plurilateral agreement on intellectual property during the Uruguay Round (the mechanism of modeling). Australia supported the US position on TRIPS despite being a net intellectual property importer because it believed that by doing so it would achieve gains in the area of agriculture.”

The US has been playing a powerful business game and they have seemingly won, yet as the sides that have been agreed on, the US is in a place where they would have to give in towards Europe, this is partially clear when we look at the information that the USPTO gives us. Yet in all this the Washington Post is equally giving a disturbing fact. From their view ‘But those rules won’t apply in the United States, where makers are free to label their yogurt as Greek‘, whilst at the same time the United States Patent and Trademark Office (at https://www.uspto.gov/sites/default/files/web/offices/dcom/olia/globalip/pdf/gi_system.pdf) gives us: ““Geographical indications” (“GIs”) are defined at Article 22(1) of the World Trade Organization’s (WTO) 1995 Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) as “indications which identify a good as originating in the territory of a Member, or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographic origin.”” as well as “Geographical indications serve the same functions as trademarks, because like trademarks they are:

1) source-identifiers,

2) guarantees of quality, and

3) valuable business interests.

The United States has found that by protecting geographical indications through the trademark system – usually as certification and collective marks — the United States can provide TRIPS-plus levels of protection to GIs, of either domestic or foreign origin.”

So from that part, not only is the WP incorrect (to some degree), if Greece pushes forward (and they should), there is every chance that Chobani will soon be relabeling their product. They should consider going with ‘Original Strained Yogurt‘ and the faster they move, the quicker they get to push the envelope in the US (and Global) on the niche they are creating. Oh, and Chobani is not the only one in this situation, there are heaps more and as such Greece should have pushed for the changes a lot sooner, if only to give push and rise to Greek exports.

Even as the Washington Post is trivialising it with: “No, actually, we’re all about French yogurt now. What is French yogurt? It’s a yogurt that comes in a cute glass pot, with a cute brand name — “Oui” — made by Yoplait“, which is merely the waves of consumers, they will get back to the Greek solution and as such for players like Chobani to get the ‘Original Strained Yogurt‘ message out will matter sooner rather than later, because the moment the consumer wave is bored with the glass cup, they will look around again and at that point whoever plays the game better gets those consumers and with the increase of 400 times the original revenue in 5 years makes it a serious task to set the right message and address the right people. I took one look at their website (www.chobani.com) and noticing how ‘Greek Yogurt‘ is their forte, which is not bad, yet if Greece gets their way in this and the information as even the United States Patent and Trademark Office (USPTO) gives it, the Greek enforcement would not be totally impossible, adhering to change and educating the consuming readers now will make a truckload of difference down the track. In my view it is not whether the ‘Greek Yogurt‘ mention is valid or not, it is for the most the strongest message the website throws into our eyes and as such they need to consider their steps. The only other thing I noticed is that they had not taken the trouble to make a mobile app to keep people informed, with a $1 billion plus, that seems like a failure to me. If the product is all, than being seen everywhere matters, especially in this mobile environment. Even when we take the Denver Post (March 9th) at their word, where Chobani chief marketing officer Peter McGuinness said he’s not worried about imitation. “It hasn’t hurt our business because our food is better”, this might be true in his case, yet the rivals need to get creative, so Peter McGuinness needs to get (read: stay) ahead of them before they get a chance to catch up, the game is not just to get ahead of all, it is equally a case to make sure that they cannot catch up. It is the one lesson that Sony learned too late with Betamax, VHS was never anywhere near the quality that Sony offered, yes in 1983, 8 years after Betamax was released it was clear that VHS had won and it was downhill for Betamax from there. It seems to me that if Chobani is not assertively busy keeping the message on track others can start to catch up and as such Chobani should not give up ‘Greek yogurt‘, but informing the consumer what ‘Original Strained Yogurt‘ is could make the difference between a clear first position, or a shared top group. The need for that part is equally in the Denver Post as we see “Then there’s the food companies’ relentless drive to improve profit margins. Amid the industry’s sales decline, General Mills, Mondelez International Inc., Kellogg and Campbell have aggressively cut costs“, the question becomes how are they cutting costs? Are they resorting to additives or alternatives to straining as short cuts in manufacturing? Either way, at this point Chobani could have the edge on two terms (for now) and a clear ‘original’ message if Greece continues and secures protection on Geographical Indication. The Washington Post was not incorrect in their statement, even as it differed from the USPTO, yet the other side is that even as the TPP is dead, whatever follows will still have the parts in it and Europe is more and more protective of certain items. We saw in 2014 “As part of trade talks, the EU wants to ban the use of European names like Parmesan and Gruyere on cheeses made in the US“, with consumer value being more and more important, whatever trade agreement comes through at some point, the Europeans will push for this part and the US with much larger Pharmaceutical avenues will most likely give in on that point if they want to have any hope of stopping generic medication to get a freehold in the EU and UK. As such those who alter the course of their products now are in a much better position when they get overrun with some ‘sudden’ news on the matter. In this, I will not and cannot proclaim I am correct. Yet I can state that my view is indeed more likely than not the correct assessment. We will see soon enough if my view holds water. The fact that Pappas Post reported 22 hours ago “Greece’s Ministry of Agriculture has (finally) assembled a group of experts that are planning the application process to register “Greek yogurt” in the European Union Register as a term with a protected geographical indication (PGI) or protected designation of origin (PDO)” implies that the forming of the application is now underway, and whichever trade talks happens during the current US administration could give rise to changes that Chobani and others need to comply with soon thereafter.