Harvest Moon does not compete in the same markets as Chobani, acknowledged founder Florian Jung, but added: “The space in Europe’s cooling shelves is limited. And as we plan to further expand internationally, a future encounter in the fridge section is quite likely – in the UK for example.”
In this scenario, a “comparatively small brand like Harvest Moon [which employs 15 people] would have a hard time prevailing against such a large corporation,” claimed the firm in a press release issued Thursday.
We have trademarks and we’re eager to protect these
Asked what trademarks Harvest Moon has and whether it has been in direct contact with Chobani over the labels, a spokeswoman told FoodNavigator-USA:
"We have internationally registered trademarks and we’re eager to protect these [FoodNavigator-USA understands that these are limited to Europe and do not apply to the US market].
"We did not get a response from Chobani about them using our design yet. [However, a Chobani spokesperson told FoodNavigator-USA that Chobani had reached out to Harvest Moon on "multiple occasions" and had not had a response to its inquiries.]
"We first launched our plant based coconut yoghurts in 2015 and achieved a successful market position in the European yoghurt market," she added.
"Part of this success is built on our brand and our design. As a small company we worked very hard to get it right and the design is loved by our customers. Therefore we have to protect it."
While you could argue that a shield over a pattern (the white circle against the patterned background) is a design used in everything from wine and chocolate to coffee, and that it makes sense for Chobani to use greens and browns to distinguish its plant-based range from its core dairy range, Jung claimed that Chobani had "copied our beloved brand.
"We’re flattered that Chobani loves our design. But a company of this standing could create something original."
Asked whether the firm planned to take legal action, a spokeswoman added: "We’re currently examining whether and which legal steps we will take."
Chobani: 'We’d prefer to celebrate our like-mindedness, rather than disparage for publicity’s sake'
Chobani told FoodNavigator-USA that its packaging had its own distinct look and feel: "Harvest Moon’s packaging looks great, and our Non-Dairy Chobani platform, sold only in the US, has its own distinct look and feel and comes in a variety of different flavors and formats.
"We’re happy to see Harvest Moon shares our mission to bring delicious, nutritious, natural options to more people. We’re also happy they share our passion for giving back – since cup #1 in 2007, Chobani dedicates a portion of our proceeds to charitable giving and supporting the communities we call home.
"We’d prefer to celebrate our like-mindedness, rather than disparage for publicity’s sake. We wish Harvest Moon all the success in their quest to bring better food options to the European market."
Attorney: 'I do not see any trademark protection for Harvest Moon here that impacts Chobani'
So were Harvest Moon to enter the US, or were Chobani to sell its non dairy products in Germany or the UK (where Harvest Moon may enter) might it have grounds for a legal challenge?
Kevin Bell, managing principal at law firm Porzio, Bromberg & Newman, told FoodNavigator-USA that he did not think Chobani had much to worry about, adding: "I do not see any trademark protection for Harvest Moon here that impacts Chobani.
"They may be mistaking traditional trademarks with trade dress, which would relate more to a competitor imitating the overall appearance of another company's product. This includes things like colors, patterns, and markings on the accused product. However, it normally needs to be very similar to cause confusion among consumers. I don't see any words on Chobani's product that Harvest Moon has, or could easily register, as a word or design mark in the U.S. Most of the words are merely descriptive."
'To bring a strong trade dress case, you need more in my opinion'
Bell added: "I understand that both products are similar in colors and have leaves and coconut shells on them. However, to bring a strong trade dress case, you need more in my opinion.
"The shape of the packaging is significantly different here. The fonts are different, as are the font colors. Looking at them side-by-side, I don't think Harvest has a strong case that people buy Chobani when they mean to buy Harvest Moon. I appreciate that competitors often use similar images to demonstrate what is inside or a particular flavor.
"Maybe there is something more that I am unaware of, but on its face, Harvest Moon's money may be better spent on what it is best at, developing and launching great products, as opposed to paying attorneys to fight with a well-heeled company.
"A company the size of Chobani should have a process for searching trademark searches internationally as they go through product development. I don't think Harvest Moon would have come up on any search related to Chobani's product."
Trade dress is defined as a product's total image or overall appearance
Joel Rothman, a partner at Schneider Rothman Intellectual Property Law Group, told FoodNavigator-USA: "The trade dress of a product is protected in the same way as a trademark. Trade dress is defined as a product's total image or overall appearance and 'may include features such as size, shape, color or color combinations, texture, graphics or even certain sales techniques.'"*
He added: "Most companies do not register trade dress with the Trademark Office, but some do. Familiar registered trade dress includes the shape of a Coca-Cola bottle or the robin’s egg blue color of a Tiffany box.
"In its simplest terms, whoever is first to use trade dress for a product in a market has the right to that trade dress for that product. So, one recent entrant in the coconut-based vegan yogurt market may find itself the subject of a trade dress infringement claim brought by the senior user if the junior’s trade dress is confusingly similar to senior’s."
*John H. Harland Co. v. Clarke Checks, Inc., 771 F.2d 966, 980 (11th Cir. 1983), cited with approval in Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763 (1992).