Yoplait Granted Injunction in Passing Off Case Against Danone

The Irish High Court has granted an interlocutory injunction stopping Danone from launching its Skyr yoghurt in Ireland, after Yoplait claimed the packaging looked too similar to its own. The judge found a risk of confusion, even without proof of customer mix-ups. Our Intellectual Property team reviews the decision.

The Irish High Court has granted an injunction against Nutricia Ireland Limited, the Irish subsidiary of Danone. The injunction restrains Danone from passing off certain Danone Skyr products as those of Yoplait. Danone will also now be unable to launch its competing yoghurt product, which is currently sold in Belgium and the UK, in Ireland. Only the interlocutory injunction has been decided so far. However, the case is a useful reminder of the steps needed to bring a successful passing off claim.

Background

Skyr is a traditional Icelandic dairy product. Yoplait has been selling its Skyr products in Ireland under the Yoplait brand since September 2022. Those products have been extensively marketed in Ireland. Yoplait filed two Irish trade mark applications in February 2025 for the below figurative images to protect the get-up of its Skyr products. Those applications are currently pending.

Conversely, Danone is the leading brand of yoghurts generally in Ireland. It launched a range of Skyr products in the UK in February 2025. Yoplait argues that the get-up of those products is confusingly similar to Yoplait’s Skyr products. A comparison of the competing products is set out below.

Yoplait Skyr product	Danone Skyr product

Danone intended to imminently launch some of its range of Skyr products in Ireland. Both companies’ products appear in navy packaging. Danone’s intentions became known in late February 2025. This led to legal correspondence between the parties. The matter culminated in the initiation of High Court proceedings on 10 April 2025.

Injunctive relief

Mr Justice Barrett in the High Court reiterated the test for interlocutory injunctions as set out in the Supreme Court decision in Merck Sharp and Dohme v Clonmel Healthcare.[1] In that case, the Irish Supreme Court emphasised the flexible test for injunctions as a form of equitable relief. The Supreme Court also set out the steps that should be followed when applying for an interlocutory injunction. In considering one of those steps, which is whether there is a fair question to be tried, Mr Justice Barrett in this case reiterated the three necessary things that must be proven in a passing off claim:

1. Reputation or goodwill in the claimants product, including in a brand name or get-up

Mr Justice Barrett was satisfied that this part of the test was met, based on expert evidence provided to the Court about the Irish dairy yoghurt market. In particular, the following activities undertaken by Yoplait in support of its Skyr product were identified:

• Brand building: National advertising, podcast sponsorship, national sponsorship, and influencer marketing, and
• Sales activation, in-store media/activations, online and in-store sampling.

2. Misrepresentation leading to confusion between what is alleged to be the offending product and the claimant’s product

Interestingly, Yoplait had not produced any evidence of actual consumer confusion. However, this did not ultimately matter. Mr Justice Barrett commented that proof of intention to deceive is not required and it is sufficient that a defendant “represents its goods in such a way that it is a reasonably foreseeable consequence that the claimant’s business or goodwill will be damaged.”[2]

When comparing the competing products here, Mr Justice Barrett held that “the sheer blueness” jumps out when one looks at the Yoplait and Danone containers. When products are placed next to each other in a supermarket fridge, colour is the first thing people notice. For that reason, the second part of the passing off test was also met.

3. Whether damage to the claimant’s goodwill or reputation has been established

Mr Justice Barrett relied on the Falcon Travel case[3] which held that “it is the appropriation of goodwill which constitutes the damage necessary to sustain an action for passing off.” The Judge was satisfied that damage and confusion had been established on the evidence before him. Therefore, the third and final part of the passing off test had been satisfied.

Comment

To avoid disruption, the High Court chose to stick with the current state of affairs and granted the injunction. The current position is Yoplait selling in Ireland using its blue packaging and Danone not selling on the Irish market using its blue packaging. An interesting aspect of the judgment is confirmation that the High Court will grant an injunction prior to a product launch and without any evidence of actual confusion or evidence on point-of-sale displays. It remains to be seen whether other Irish Courts will follow a similar approach going forward. It will also be interesting to see if more concrete evidence is required when the case proceeds to full hearing for a final determination on the substantive claims.

For more information and expert advice, contact a member of our Intellectual Property team.

The content of this article is provided for information purposes only and does not constitute legal or other advice.

[1] [2020] 2 I.R. 1, [2019] IESC 65

[2] Per MacMenamin J in McCambridge Limited v Joseph Brennan Bakeries [2013] 1 I.L.R.M. 369, 377

[3] Falcon Travel Ltd v Owners Abroad Group Plc [1991] 1 I.R. 175