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Geographical Trademark Protection of GRUYERE Cheese- USA

April 12, 2022

By Pranit Biswas and Tanvi Bhatnagar

Introduction

Very frequently it comes to our attention that an appetizing item is recognized by its region or nation of origin, like champagne of France. Resultantly, several items are even recognized with their own Geographical Indication label for their distinction of being accessible or having a specialization owing to their area of origin.

Geographical Indication: Meaning

A geographical indicator (GI) is a symbol used on items that have a particular geographical origin and contain traits or a reputation that are related to that origin. In order to act as a GI, a sign must identify a product as originating in a certain location or geographical area. In addition, the traits, attributes or reputation of the product should be largely related to that specific area of origin. Since the attributes rely on the geographical site of production, there is a clear relationship between the product and its original place of manufacture. So is the curious instance of Gruyere cheese.

One of the most frustrating tendencies in intellectual property is when regional consortiums attempt to lock up words or language surrounding a certain kind of product with assertions that only that area can manufacture a certain item. If you’re acquainted with this notion, the first thing to come to your mind will likely be one French wine group’s ownership of the name “champagne” in some areas. Another example would be a group of Belgian chocolate producers seeking to declare that nobody may promote “Belgian-style chocolate” unless it originates from one of them.[1] In India also, several GIs are existing to indicate the specific geographical origin as well as designate origin based qualities and reputation of products such as Darjeeling Tea, Basmati Rice, Coorg Orange etc.

Geographical Indication in the USA

Not the case in the United States for a group of French and Swiss cheese-makers in the region of Gruyeres, who wanted to have the phrase “GRUYERE” trademarked. ‘Gruyere’ is commonly regarded a mild, smooth-melting cheese that’s a popular for fondues and has been prepared to stringent requirements in the area since the early 12th century and cheese created outside the region can’t properly be termed gruyere.

In Europe, the acquiring protection on the term ‘GRUYERE cheese’ has been much smoother. In 2001, Gruyere cheese was granted the Appellation d’Origine Contrôlée (AOC) status at national level and in 2011, it received the Protected Designation of Origin (PDO) or Appellation d’Origine Protégée (AOP) certification applying to the whole of Europe. The Gruyere cheese PDO is registered in the Swiss Federal Office for Agriculture (FOAG), meaning that prior to that, the designation can only be used for products that follow through the criteria pertaining to the origin, fabrication process, quality etc.[2]

However, in the U.S., the desired protection is not granted not only by the Federal Trademark Trials and Appeals Board, but also the US District Court. The US Patent and Trademark Office (USPTO) rejected an application filed by the Swiss Interprofession du Gruyère and the French Syndicat Interprofessional du Gruyère for registration of the term “Gruyere” as a certification mark. The Federal Trademark Trials and Appeals Board ruled in favour of the U.S. Dairy Export Council which has opposed the mark/term GRUYERE being generic.

Thereafter, the Consortium of Swiss and French cheesemakers from the area surrounding the town of Gruyeres, Switzerland, filed a civil action in US District Court for the Eastern District of Virginia. This argument for the cheese is quite similar to the notion that champagne can be only be used to sparkling wines from the Champagne area of France. In court filings, its attorneys stated that Swiss and French gruyere is painstakingly prepared from local, natural ingredients using traditional procedures that ensure the relationship between the geographic location and the quality and qualities of the finished product. They contended letting others to use the gruyere moniker would confuse American consumers.

Post discovery and additional fact-finding stage, the Defendants filed a motion for summary judgement on the grounds of the term GRUYERE being generic.

The question before the Court was whether the term GRUYERE should receive geographic trademark protection, so it may only be used to identify and describe cheeses produced in certain portions of Switzerland and France, or whether the term GRUYERE is generic.

In a ruling made public in January, 2022, U.S. District Judge T.S. Ellis ruled against the Swiss consortium and in favour of U.S. cheesemaker defendants, International Dairy Foods Association, U.S. Dairy Export Council, Atalanta Corporation and Intercibus, Inc., finding that GRUYERE is a generic term and American customers do not link the gruyere term with cheese manufactured particularly from that location; hence the same is ineligible for protection. While comparable trademark rights have been awarded to Roquefort cheese and Cognac, Ellis ruled the same argument can’t be made for gruyere. It is obvious from the record that the name Gruyere may have in the past referred primarily to cheese from Switzerland and France. However, decades of importation, manufacturing, and sale of cheese named Gruyere made outside the Gruyère area of Switzerland and France have corroded the definition of that word and rendered it generic. Among other things, he emphasized the fact that the Food and Drug Administration governs usage of the gruyere name and that none of the criteria define its area of origin.[3]

All of these court activities followed months of the two foreign entities issuing all types of threat letters to a number of American dairy firms that create gruyere cheese.[4] Non-helpfully, the warning letters also regularly came with ideas about what these enterprises should label their cheeses instead: alpine cheese and mountain cheese are also among the few of the proposals.

As announced after the verdict, Interprofession du Gruyère and the Syndicat Interprofessionnel du Gruyère appealed the case of Interprofession Du Gruyere, et al. v. U.S. Dairy Export Council et al. to the Fourth Circuit Court of Appeals. This appeal will eventually decide the fate of rights to be protected for GRUYERE Cheese in the United States only, as in the Europe, it is already registered and protected as Geographical Indication.

[1] Judges pokes holes in Swiss cheesemakers’ legal arguments, Daily Times (January 13, 2022), https://dailytimes.com.pk/868065/judge-pokes-holes-in-swiss-cheesemakers-legal-arguments/.

[2] The future of cheese: a debate on the “Gruyere-ness” of the Gruyere cheese, The Trademark Lawyer (February 3, 2022) https://trademarklawyermagazine.com/the-future-of-cheese-a-debate-on-the-gruyere-ness-of-the-gruyere-cheese/

[3] Judges pokes holes in Swiss cheesemakers’ legal arguments, The Indian Express ( January 12, 2022), https://indianexpress.com/article/lifestyle/food-wine/judge-pokes-holes-in-swiss-cheesemakers-legal-arguments-7719132/.

[4] See no. 4

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